Connelly v. Bartlett

• Decision Date: 29 May 1934
• Parties: CONNELLY v. BARTLETT. SAME v. BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 311

190 N.E. 799

CONNELLY

v.BARTLETT.

SAME

v.BROWN.

Supreme Judicial Court of Massachusetts, Worcester.

May 29, 1934.

Exceptions from Superior Court, Worcester County; Broadhurst, Judge.

Actions, tried together, by John J. Connelly against Spaulding Bartlett and Jacob F. Brown, respectively. Verdicts for defendants were directed, and plaintiff brings exceptions.

Exceptions overruled.

J. E. Casey, of Leomister, for plaintiff.

E. O. Proctor, of Boston, for defendant Brown.

L. E. Stockwell, of Worcester, for defendant Bartlett.

DONAHUE, Justice.

These are actions of tort for deceit based upon the misrepresentation alleged to have been made in March, 1922, by the defendant in each case that he was authorized to employ the plaintiff for the purpose of procuring a customer for the business, assets and capital stock of S. Slater & Sons, Inc., hereinafter referred to as the Slater Company. At the time of the alleged misrepresentations, that company was engaged in the manufacture of woolen and cotton goods in the town of Webster, and the plaintiff was in the real estate and insurance business in that town. The defendant Bartlett was the treasurer and a director, and the defendant Brown was the president and a director, of the Slater Company. The cases were tried together in the superior court and at the close of the evidence the trial judge directed a verdict for each defendant; the plaintiff's exceptions thereto are here presented in a single bill of exceptions.

The plaintiff testified that on March 4, 1922, in response to a telephone call he went to the office of the defendant Bartlett whom he had known for fifteen years, and that Bartlett said that he had received word from the defendant Brown that the Slater Mills were to be sold and that he was authorized to employ some one ‘to sell them and find a customer.’ The plaintiff replied that he would be ‘glad to handle it’ and could probably find a customer. Bartlett told the plaintiff to get busy, that the plaintiff was the only broker authorized to sell the property and that with respect to Bartlett's authority the plaintiff could see Brown the following Monday. The plaintiff did see Brown on March 14, 1922, and Brown told the plaintiff to go ahead and get a customer and he would get a suitable commission if he found a customer; that he was the only authorized broker; that the best prospect was the American Woolen Company; and that all the plaintiff had to do was to get some one interested as a purchaser and he would get a suitable commission when the deeds were passed. The plaintiff saw some of the officers of that company and as a result, on March 15, 1922, wrote to its president, Wood, that through the courtesy of Bartlett he was writing to inform Wood that the Slater Company would consider an offer of $2,188,985 for their plants. Wood replied by a letter dated April 10, 1922, stating in substance that during the last few months another person had called on him several times in regard to an alleged desire of the Slater interests to sell out but that he had then declined to consider any proposition that did not come through Brown; that his attitude was the same with regard to the proposal in the plaintiff's letter and that if the property was for sale he would consider only a proposition coming from Brown. The plaintiff further testified that on June 12 he showed the Wood letter to Brown who told the plaintiff to pay no attention to it and said he was glad that things had turned out as they had and he would take care of Wood when he saw him. The plaintiff did not see Wood personally or communicate with him in any way after sending the letter of April 10, 1922. He had no written communication with the American Woolen Company except by that letter and another letter dated March 31, 1922, addressed to a vice president of that company containing a copy of the annual report for the year 1921, filed by the Slater Company at the State House.

In the following year on April 24, 1923, after negotiations between the Slater Company and Wood as president of the American Woolen Company, a contract of sale was entered into by the two companies. On April 18, 1923, the plaintiff sent a letter to H. N. Slater who was then the president of the Slater Company, stating it to be his understanding that a sale of part of the Slater plant was to be consummated on May 1, and asking for a conference with regard to a commission. He wrote that he had ‘submitted the proposition to the American Woolen Company in March, 1922 as Agent,’ that the matter was placed in his hands by Bartlett and that the ‘agency was confirmed’ by Brown with an agreement on behalf a the Slater Company to pay the plaintiff a commission if the transaction was consummated. He received a reply from Slater dated April 30, 1923, stating in substance that the latter saw no necessity for a conference, that Bartlett absolutely denied placing in the plaintiff's hands the sale of the property or authorizing him in any way to act as agent or broker and that Brown denied making any agreement on behalf of the Slater Company to pay the plaintiff a commission. The plaintiff testified that on the day of the receipt of this letter he showed it to Bartlett who said he would not do the plaintiff any harm and that he was entitled to his commission.

It was agreed at the trial that on June 11, 1923, a deed conveying five parcels of land and including buildings and machinery was executed and delivered by the Slater Company to the American Woolen Company and on the same day a bill of sale of certain materials and supplies was delivered, the total consideration being $1,919,525.74. The plaintiff brought suit against the Slater Company for a commission on the sale. In this court an opinion sustaining a decision adverse to the plaintiff in the superior court was handed down on November 27, 1928. Connelly v. S. Slater & Sons, Inc., 265 Mass. 155, 164 N. E. 77. The plaintiff testified that until then he did not know that Bartlett and Brown had no authority from the Slater Company to authorize a sale of its property. The writs in the present cases are dated June 21, 1929.

One of the essential elements which must be proved by a plaintiff in an action for deceit is that the wrong of the defendant caused him damage. Goodwin v. Dick, 220 Mass. 556, 107 N. E. 925. Although all other elements may be established legal liability does not exist in the absence of such proof. Des Brisay v. Foss, 264 Mass. 102, 111, 162 N. E. 4. Deceit is ‘not an absolute wrong, for which the injured person may recover at least nominal damages, like one who sues for a breach of contract or the invasion of an absolute right.’ Brackett v. Perry, 201 Mass. 502, 504, 87 N. E. 903;Freeman v. Venner, 120 Mass. 424, 427. No actionable wrong has been done unless provable damage has resulted. Gurney v. Tenney, 197 Mass. 457, 465, 84 N. E. 428;Lewis v. Corbin, 195 Mass. 520, 524, 81 N. E. 248,122 Am. St. Rep. 261;Randall v. Hazelton, 12 Allen, 412, 415. Where a plaintiff does not prove that he is worse off than if there had been no misrepresentation he has not made out a case of deceit. Brackett v. Perry, supra; Dawe v. Morris, 149 Mass. 188, 21 N. E. 313,4 L. R. A. 158, 14 Am. St. Rep. 404;Bradley v. Fuller, 118 Mass. 239;Whitney v. Blanchard, 2 Gray, 208. If, as represented by the defendants, they had authority to employ the plaintiff, according to the plaintiff's testimony as to what was said by them, it was an employment to procure a customer who was ready, able and willing to purchase the property on terms satisfactory to the Slater Company. Boyle v. Goldenberg, 267 Mass. 24, 165 N. E. 708. Under such an employment if a plaintiff is successful he is entitled to a commission as his only compensation, if he does not succeed he is not entitled to compensation for time or money spent by him in the effort to procure such a customer.Cadigan v. Crabtree, 179 Mass. 474, 480, 481, 61 N. E. 37,55 L. R. A. 77, 88 Am. St. Rep. 397. It is the plaintiff's contention that he is entitled to recover as damages for the alleged fraud of the defendants an amount equal to the commission he would have earned if the defendants had been authorized to employ him and he had been successful in his efforts. It has not been suggested that he was here entitled to recover the value of time or money spent by him in the effort to procure a customer and there was no evidence of the amount or the value of the time devoted by him to that purpose or of any money spent by him in the effort to accomplish it. On the evidence a finding was not warranted that what the plaintiff did was enough to permit his recovering a commission if he had a valid contract with the Slater Company. The evidence does not show that through his efforts the American Woolen Company became the purchaser. He talked with officials of that company who referred him to Wood, the president; he wrote one letter to Wood stating that the Slater Company would sell for a price named; he received in reply a letter which in substance said that Wood would deal with no one but Brown. That in effect is all that the plaintiff did. He never communicated further with Wood, and never spoke to him about the sale. He did not introduce Wood to Brown or Bartlett and brought no offer from Wood to the Slater Company. There was evidence that Wood had known and had business dealings with Brown for twenty-five years. The sale was made over a year later. Upon the testimony most favorable to the plaintiff, there is nothing which tends to show that he interested Wood in the purchase or that the American Woolen Company became the purchaser as the result of anything done by the plaintiff. Compare Horowitz v. S. Slater & Sons, Inc., 265 Mass. 143, 153, 164 N. E. 72. The plaintiff never earned a commission. That he did not was not a consequence of the misrepresentations of the defendants. He would not have been entitled to a commission if what was...