Durgin v. Somers

• Decision Date: 19 January 1875
• Citation: 117 Mass. 55
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Edmund Durgin v. William Somers & others

117 Mass. 55

Edmund Durgin v. William Somers & others

Supreme Court of Massachusetts

January 19, 1875

Argued November 17, 1874 [Syllabus Material] [Syllabus Material]

Suffolk. Contract against William Somers, J. H. Kling, E. W. Roff, Cyrus J. Anderson and W. C. Huntington, copartners under the style of William Somers & Co., to recover for services rendered in procuring a purchaser for a lot of land in Boston. The declaration contained two counts, the first alleging that the plaintiff was employed by the defendants to sell, or procure a purchaser for the land, and setting forth the services rendered; and the second upon an account annexed. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows:

It appeared in evidence at the trial that the lot was originally owned by George W. Tuxbury, who, on January 1, 1871, gave a bond to the firm of Newman & Colby, to convey the land to them at the price of thirty-five cents a square foot. Newman & Colby owed the defendants a large sum of money, and the defendants, in pursuance of an arrangement made with the firm and their creditors, took all their assets upon payment of a certain sum; and upon learning of the conditional interest that the firm had in this land, were desirous of obtaining the benefit thereof.

The plaintiff testified that the contract he relied on was made in the spring of 1871, and confirmed in the fall thereafter; and that in January, 1872, he introduced a purchaser to the defendants, one P. G. Maguire; and a deed of the land from Tuxbury to Maguire was put into the case by the plaintiff, the consideration thereof being $ 1687.50, as therein stated. To obtain this deed the defendants paid nearly $ 500 to Tuxbury, being the balance due under the bond, and the deed was then made to Maguire at the request and for the benefit of the defendants. The record title stood in Tuxbury all the time from January 1, 1871, to the time of the delivery of this deed to Maguire.

In relation to the alleged contract for his services, the plaintiff testified that Kling, one of the defendants, met him near the premises in May, 1871, and told him that he, Kling, wanted to get a deed of the land; and the plaintiff replied that the land was not paid for; that Kling then asked how much was due upon it, and requested the plaintiff to ascertain and let him know; that the plaintiff next saw the defendant Somers, who said he wanted the plaintiff to see Tuxbury and ascertain how much there was due on the land, which the plaintiff agreed to do, and did; that the plaintiff next saw Kling a few days after, and Kling said he would like to have the plaintiff get the land and find a purchaser, and he would pay him for doing so. He testified further as to the conversation as follows: "I told him I would try to get a purchaser. He said if I could, he would give me all I could get over thirty-five cents a foot, which was the price named in the bond. He wanted I should see Tuxbury, and how much there was due on the bond. I saw Tuxbury. Kling said they would pay the balance for the land. Wanted me to get a purchaser and they would pay to me all I got over thirty-five cents a foot. I told him I would try and sell it."

The plaintiff further testified that he next saw the defendant Somers on State Street, and he said that whatever Kling had done would be all right; that he was one of the firm. This was in May. The plaintiff testified that he was then taken sick, but in the latter part of the summer and fall he saw several persons about buying the land; that in November he was called upon by Somers, who asked him if he had sold the land, and said to the plaintiff that if he would, he would pay him as agreed.

This was substantially all the evidence offered by the plaintiff to prove his contract. The plaintiff then offered further evidence to show that he found and introduced Maguire as a purchaser, and then went with Kling to Tuxbury, where the amount agreed on was paid by Kling to Tuxbury; and the deed then made as above recited to Maguire.

The plaintiff further testified that after he had demanded payment in June, 1872, the defendant Kling offered to assign a certain mortgage on this land in settlement of the plaintiff's claim, upon condition that the plaintiff would pay the difference in amount. The plaintiff offered in evidence the following letter from the defendants to him, signed "William Somers & Co.": "Boston, July 12, 1872. Dear Sir: Referring to our conversation some weeks since, in which we called your attention to the fact that P. G. Maguire, with whom you arranged to build on our lot on Clapp Street, of this city, was not able to use the $ 1000 in the operation which you named to us he would do, and referring further to our conversation last evening upon the same subject, as also the matter of a certain consideration alleged due you for your agency in the matter, embraced in an incidental conversation about a year ago, in effect that if you sold the land you might have all realized beyond thirty-five cents per square foot, and finding that the said Maguire, in failing to use the $ 1000 spoken of, is unable to finish the building, and in order to convince you that we mean to be entirely fair in the matter, we offer you the following proposition, viz.: Upon paying us at the rate of thirty-five cents per square foot for the land, together with what cash and material we advanced the said Maguire upon his operations and interest on the same, we will transfer to you a first mortgage which we now hold on the property, of $ 2500, and also a second mortgage on the same for $ 600. This latter mortgage is dated May 14, and the time is four months. It will enable you to foreclose in about two months, which will throw the attachment now upon the property, and is entirely clear of all liens upon the same, having examined the records this day and find a lien for $ 58 on record, which only dates back to May 28, fourteen days after our mortgage was made and recorded. We should give no one else this proposition, and only to you in order that you may be convinced that our object is to deal fairly with you, provided you still feel as though we should hold ourselves for the conversation of a year ago. Under the circumstances we shall make no further advances either in material or money, and shall consider our proposition open to you for ten days from this date inclusive." The defendants objected to the admission of the letter, on the ground that it was merely an offer of compromise, but the judge ruled that it contained certain statements of fact, and so far was admissible, instructing the jury that as an offer of compromise it was inadmissible, and in that aspect should have no weight.

The plaintiff, in reply to a question by the judge, stated that his charge was for finding a purchaser and getting the land deeded to the...