O'Connor v. National Metals Co.

• Decision Date: 01 December 1944
• Citation: 317 Mass. 303,58 N.E.2d 153
• Parties: DANIEL J. O'CONNOR, administrator, v. NATIONAL METALS COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 303

58 N.E.2d 153

DANIEL J. O'CONNOR, administrator, v. NATIONAL METALS COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

December 1, 1944

October 2, 1944.

Present: FIELD, C.

J., LUMMUS, QUA RONAN, & SPALDING, JJ.

Contract Consideration, Modification, Implied, Personal services.

After a defendant in consideration of the plaintiff's furnishing information as to an opportunity to purchase metal, had promised to pay the plaintiff one half of the profit to be derived from a purchase of the metal and a sale thereof to a customer of the plaintiff, but subsequently had rejected the metal as not in accordance with specifications and had sought damages from the seller, a further promise by the defendant to pay to the plaintiff one half of such damages as he might recover was not supported by consideration on the alleged ground of forbearance where the plaintiff had never asserted a claim against the defendant for breach of the parties' original contract nor expressly or impliedly promised to forbear prosecuting such a claim; nor was the plaintiff entitled to recover the fair value of his services from the defendant on a quantum meruit.

CONTRACT OR TORT. Writ in the Superior Court dated April 25, 1938. The action was tried before Walsh, J.

P. L. Keenan, for the plaintiff. H. Bergson, for the defendant, submitted a brief.

SPALDING, J. This is an action of contract brought originally by William M O'Connor (hereinafter called the plaintiff). By reason of the plaintiff's death during the pendency of the action, his son, as administrator of his estate, was substituted as the party plaintiff for the purpose of prosecuting the action. The first of the two counts in the declaration alleges that the plaintiff had certain information concerning a lot of rails which might be purchased from the Commonwealth of Massachusetts on sealed bids; that one Benjamin Feinberg, an officer and manager of the defendant corporation, made, in its behalf, an oral agreement with the plaintiff by the terms of which the plaintiff revealed to the defendant the information that he had, and the defendant corporation "was to pay the plaintiff one half of the net profits derived from the purchase and sale of the said metal"; that as a result of the information furnished the defendant realized $4,800.26 gross [sic] profit "from the sale"; and that the defendant owes the plaintiff $2,400 with interest from the date of demand. The second count is on an account annexed which alleges that the defendant owes the plaintiff $2,400 for "1/2 of profit derived from bid made to the Commonwealth of Massachusetts in connection with certain rails purchased on or about June 12, 1936." The declaration states that both counts were for the same cause of action.

At the conclusion of the evidence the trial judge, on motion of the defendant, ordered a verdict for the defendant and reported the case to this court upon a stipulation of the parties that if upon the competent evidence in the case the direction of a verdict for the defendant was wrong, judgment is to be entered for the plaintiff in the sum of $1,250.

The jury could have found these facts. The plaintiff, who was engaged in the junk business, learned in June, 1936, that the Commonwealth of Massachusetts had advertised for sale four hundred forty tons of rails. Desiring to purchase them but lacking the money to do so, the plaintiff went to see a Mr. Feinberg of the defendant corporation and it was agreed that Mr. Feinberg on behalf of the defendant corporation would purchase the rails, which would then be resold to a customer of the plaintiff, and that the profits derived from the sale would be divided between the plaintiff and the defendant. Pursuant to this agreement the defendant entered into a contract with the Commonwealth for the purchase of the rails and a deposit of $5,000, on account, was made. Later, the defendant (on the ground that the rails were not up to specifications) declined to purchase them, and demanded and obtained from the Commonwealth the return of its deposit. Thereafter (apparently as an award of damages resulting from a proceeding against the Commonwealth) it received $4,800.26 in addition. Mr. Feinberg, when informing the plaintiff that the rails were being rejected, stated to him "that even then it would be the same, the agreement would remain the same, [and] they would share half of the profits, that is, the...