Corleto v. Prudential Ins. Co. of America
| Citation | 70 N.E.2d 702,320 Mass. 612 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Decision Date | 08 January 1947 |
| Parties | JOSEPH B. CORLETO v. PRUDENTIAL INSURANCE COMPANY OF AMERICA & another (and a companion case [1]). |
November 6, 1946.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & SPALDING, JJ.
Broker, Commission. Proximate Cause.
In an action by a real estate broker against an owner of land for a commission for procuring a purchaser of land listed with him by the owner, and also against an authorized agent of the owner; and in a second action, tried with the first, by the same plaintiff against the purchaser based on the purchaser's having received part of a commission paid by the owner to another broker through whom the sale was consummated, the plaintiff was entitled to recover the full amount of his commission from the owner upon proof that he had earned a commission because his efforts were the effective cause of the sale; but he was not entitled to recover against either of the other defendants.
A broker who, on behalf of an owner who had listed with him certain real estate, had carried on negotiations with one whom he had interested in the property and who afterwards purchased it through another broker, was not as a matter of law precluded from being found to have been the efficient cause of the sale merely because he knew nothing about the contract of sale or deed until after they were executed, or because the final terms of sale differed from those proposed during his negotiations, or because the owner paid a commission to the other broker possibly in ignorance of the services the first broker had rendered.
A verdict for the plaintiff in an action by a broker for a commission for procuring a sale of real estate of the defendant would have been warranted by evidence of negotiations by him with an authorized agent of the defendant and a prospective purchaser which could have been found to have been the efficient cause of a sale to that purchaser although the sale was consummated by the purchaser through another broker who had been brought in by the purchaser, after he had decided to buy, in order that the second broker, by pretending to effect the sale might collect a commission and divide it with the purchaser which he did.
TWO ACTIONS OF CONTRACT. Writs in the Superior Court dated March 10, 1943, and February 26, 1944.
The cases were tried before Buttrick, J. M. Michelson, for the plaintiff.
J. C. Johnston, (J.
Friedberg with him,) for the defendants Capodilupo and another.
J. F. Sullivan, for the defendant Prudential Insurance Company of America and another.
The first action is in contract. The first three counts allege in various forms that The Prudential Insurance Company of America (hereinafter called Prudential) owes the plaintiff a commission of $7,400 as a real estate broker, with respect to the sale by that company early in April, 1942, of nine apartment buildings in Boston, containing seventy-four apartments, called collectively Kinross Apartments, to Felix Orlandella and Jerry Capodilupo as trustees of the Capodella Realty Trust, of which the beneficiaries are the children of the trustees. The two remaining counts allege liability to pay the plaintiff a commission of $5,000 on the same transaction, on the part of both Prudential and the other defendant Street and Co., Inc. (hereinafter called Street) in the fourth count, and on the part of the latter alone (on the theory of warranty by Street of its authority to bind Prudential) in the fifth count.
After directed verdicts for the several defendants, the cases come here upon a report which presents the question whether the evidence warranted a verdict for the plaintiff against any of the defendants. The evidence warranted a finding of the following facts.
Kinross Apartments was owned by Prudential, which put it into the hands of Street for management and sale, although the price had to be such as Prudential might subsequently accept. Street was the "contract broker" for Prudential, which sold no real estate except through Street. Prudential paid Street for its services, besides paying any commission earned by any other broker, if there were such. Street was authorized by Prudential to list real estate with other real estate brokers. On July 29, 1940, Street did list Kinross Apartments with several hundred such brokers, including the plaintiff but not including one Spitz, and notified them that the owner (Prudential) was believed to be "receptive to an offer" of $280,000, of which ten per cent must be in cash and the rest on a purchase money mortgage. In the matter of Kinross Apartments, everything that Street did was authorized by Prudential.
On August 14, 1940, the plaintiff, having shown the property to Antonio Capodilupo, his son Jerry, and his son-in-law Felix Orlandella, all of whom, the plaintiff was told, were to be interested in the property if bought, sent to Street an offer signed by Antonio to buy the property for $280,000, of which only $15,000 was to be paid in cash. Street refused the offer after consultation with Prudential. On August 17, 1940, the plaintiff brought all three to Street's office. After a discussion, the offer was somewhat bettered, but not enough to induce Street to accept it. Street told the plaintiff that if ten per cent should be paid in cash he would get a commission of $7,500, but that if only $25,000 should be paid in cash the commission would be only $5,000. The plaintiff agreed to those terms.
Street remained interested in the proposal. On September 26, 1940, the plaintiff sent to Street a new offer from Antonio to buy for $280,000, of which $25,000 was to be cash. Because the terms of payment of the purchase money mortgage were deemed unsatisfactory, Street refused that offer also after consultation with Prudential. The reluctance of Antonio to make a better offer was due mainly to the number of vacant apartments. The plaintiff continued to discuss the matter with Street to some extent, and with Jerry Capodilupo, who was interested to learn that the number of vacant apartments was becoming smaller. The plaintiff saw Jerry on the matter in October and December, 1940, in nearly every month of 1941, and in January, February and March, 1942. In the latter part of 1941 Jerry told the plaintiff that he would buy on the terms that Street had proposed but asked the plaintiff not to communicate that fact to Street until the vacancies had further decreased. On February 12, 1942, Street wrote to the plaintiff that the vacancies had been reduced to one, and invited a revival of the "deal." The plaintiff showed Street's letter to Jerry on February 18, 1942, and told Jerry that the time had come to close the deal. Jerry replied, Jerry asked the plaintiff to find out what the other terms would be if a larger cash payment should be made. When the plaintiff asked Street, Street answered, "Just submit the offer." But Jerry made no new offer through the plaintiff or directly to Street. The plaintiff talked with Jerry on the telephone a number of times between that date and April 2, 1942, and Jerry assured the plaintiff that "we will buy" the property.
The final negotiations for the purchase were conducted by Jerry and Felix Orlandella through a real estate broker named Spitz and not through Street but directly with Prudential. Street knew...
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