Evatt v. Willard D. Martin, Inc.
| Decision Date | 28 February 1939 |
| Citation | 302 Mass. 414,19 N.E.2d 729 |
| Parties | WALTER M. EVATT v. WILLARD D. MARTIN, INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 15, 1938.
Present: FIELD, C.
J., DONAHUE LUMMUS, DOLAN, & RONAN, JJ.
Agency, Agent's duty of fidelity. Broker, Commission, Fraud of broker. Fraud. Contract, Implied.
If a broker employed by a seller of real estate, produced a straw purchaser whom he falsely represented to be purchasing in his own behalf and for whom he was secretly acting to secure the property at the lowest price and to secure for himself a commission to which he was not entitled because another broker had procured as a purchaser the person for whom the straw was acting, the seller would be entitled to recover from him an amount paid him as commission in ignorance of the facts, without showing actual damage resulting from such double dealing.
One defrauded of money may recover it by an action for money had and received against the defrauder.
CONTRACT OR TORT. Writ in District Court of Southern Essex dated April 4, 1938.
Upon removal to the Superior Court, a demurrer was sustained by Burns, J. The plaintiff appealed.
The case was submitted on briefs. D. Burstein, for the plaintiff.
A. J. Healey, for the defendant.
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, which 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 nonexclusive 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 had 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 itself 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 his 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 its fiduciary obligations as broker by failing to exercise good faith and by failing to make full disclosure of material facts, and that because of its alleged conduct it had forfeited its right to compensation, and was liable to repay ...
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