Evatt v. Willard D. Martin, Inc.
Decision Date | 01 March 1939 |
Citation | 19 N.E.2d 729,302 Mass. 414 |
Parties | EVATT v. WILLARD D. MARTIN, Inc. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Action by William M. Evatt against Willard D. Martin, Incorporated, to recover back a commission paid to defendant as a broker. From an order sustaining the defendant's demurrer to the declaration, plaintiff appeals.
Reversed.Appeal from Superior Court, Essex County; Burns, Judge.
Hale & Dorr, of Boston (David Burstein, of Boston, of counsel), for appellant.
Healey & Healey and Albert J. Healey, all of Lynn, for appellee.
This is an appeal by the plaintiff from an order sustaining the defendant's demurrer to the declaration. The action, commenced by trustee writ, was to recover a commission paid to the defendant, who acted as a broker in effecting a sale of the plaintiff's property.
The first count of the declaration alleges in substance the following material facts: At some time prior to February 23, 1934, the plaintiff, being the owner of land in Swampscott, was offering it for sale through one Merrill as broker. Subsequent to the plaintiff's employment of Merrill, the plaintiff, at the defendant's request, also employed the defendant as a non-exclusive broker to find a purchaser for the same property, the defendant understanding that another broker had also been employed by the plaintiff.
Merrill in attempting to find a purchaser has solicited one Winslow. Thereafter the defendant informed the plaintiff that one Andresen, of New York City, was willing to purchase the property for $50,000. Upon being asked by the plaintiff whether Andresen was acting for another, and particularly whether he was acting for Winslow, the defendant represented that Andresen was purchasing in his own behalf, and that Winslow had nothing to do with the purchase. In fact Andresen was the agent of Winslow, and the defendant was acting in behalf of Winslow to secure the property for him at the lowest possible price, and, by agreement with Winslow, to secure for himself the commission to which Merrill was entitled by virtue of having produced Winslow as a customer or purchaser. The defendant ‘well knew’ that the plaintiff would not have sold the property to Winslow for $50,000 through the defendant, and for that reason the defendant and Winslow agreed to conceal the interest of Winslow and the fact that the defendant was acting for him.
On or about January 28, 1934, the plaintiff, not knowing the true facts, conveyed the property to Andresen for $50,000 and paid the defendant a brokerage commission of $2,150. In fact the consideration for the conveyance was paid by Winslow, and Andresen upon receiving had deed conveyed the property to him. Subsequently Merrill made a claim on the plaintiff for a commission for having brought about a purchase of the property by Winslow.
The declaration also alleges that the defendant was guilty of a breach of his fiduciary obligations as broker by failing to exercise good faith and by failing to make full disclosure of material facts, and that because of his alleged conduct he had forfeited his right to compensation, and was liable to repay the plaintiff the sum paid to him by the plaintiff in ignorance of the facts.
The defendant's demurrer assigns seven grounds collectively to the effect that no cause of action was stated and that the plaintiff showed no damage. The demurrer was sustained.
The allegations of the declaration that the defendant, having been employed as broker by the plaintiff, in fact acted in the transaction in behalf of one...
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