Fenton v. Fed. St. Bldg. Trust

• Decision Date: 26 January 1942
• Citation: 39 N.E.2d 414,310 Mass. 609
• Parties: FENTON v. FEDERAL ST. BLDG. TRUST. SAME v. BOSTON SAFE DEPOSIT & TRUST CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 609

39 N.E.2d 414

FENTON

v.FEDERAL ST. BLDG. TRUST.

SAME

v.BOSTON SAFE DEPOSIT & TRUST CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 26, 1942.

Exceptions from Superior Court, Suffolk County; Hanify, Judge.

Action by Donald Fenton Against the Federal Street Building Trust and against the Boston Safe Deposit & Trust Company and others, executors, to recover a commission. A verdict was directed for the defendant, and the plaintiff brings exceptions.

Judgments for the plaintiff ordered to be entered.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

R. B. Owen, of Boston, for plaintiff.

M. Jenckes and C. C. Cabot, both of Boston, for defendants.

RONAN, Justice.

The first action is in contract to recover a commission from a trust, organized under a written declaration of trust and having transferable certificates representing the beneficial interest therein, for securing a tenant in the trust property and a purchaser of one half of the trust certificates; and the second action, so far as now material, is in contract to recover a commission, on account of the said lease and said purchase, from the executors under the will of one McGregor, hereinafter called the testator. The plaintiff excepted to the direction of a verdict for each defendant. The parties have stipulated that, if ‘there was sufficient evidence to warrant a verdict for the plaintiff on any of the counts in either of the declarations,’ then a judgment was to be entered for the plaintiff in such case for a designated amount.

The trust was the owner in 1935 of a large commercial building in Boston which was not fully occupied by tenants. One Anderson and the testator were the trustees. Anderson lived in New York and seems not to have been as active as was the testator in the management of the trust. The testator had an office in the trust building and ‘was the managing trustee of the trust.’ In September, 1935, he employed the plaintiff to go around and secure tenants as the testator was too busy to devote all his time to finding tenants. The plaintiff was to be paid $30 a week and in addition thereto, in case he secured leases from any new tenants, he was to be paid one half the regular commission for obtaining such leases. The plaintiff accepted this employment and, except during December, 1935, was engaged in the performance of his duties, for which he was paid by the personal checks of the testator until August 1, 1936, when the testator declined to employ him any longer upon a salary basis but suggested that he continue as a broker upon a commission basis, which suggestion the plaintiff apparently did not accept. In addition to his salary he was paid one half the regular commission by the trust in November, 1935, for securing a lease from a new tenant. In the Spring of 1936, the plaintiff sent one Scudder to Paine Webber and Company, hereinafter called the firm, to ascertain if it would be willing to take space in the trust property. Scudder interviewed two members of this firm and ascertained that its lease was to expire in about a year and that it was negotiating for a new lease. The firm had been located in its quarters for thirty years on one floor and considered its location for such a long period to be a business asset, and that its space on a single floor was preferable to occuping the three top floors in the trust property, which it would require for adequate floor space. During the interview these members manifested an interest in the purchase of the trust property, and Scudder left with the purpose of securing and supplying them with the information that a prospective buyer usually desires in order to enable him to determine the value of the property. Scudder reported this interview to the plaintiff who, within a day or two, informed the testator. He told the testator he believed that Scudder and himself could show the firm the real possibilities of the trust property. The testator told him to go ahead, and gave him figures showing the gross expenses and the gross income if all the property were leased. As the plaintiff started to leave, the testator called him back and said that he did not know whether there was anything in the proposition or not but that he, the testator, could do a better job than anyone else as he knew the members of the firm, to leave the matter to him, and that ‘I will see you are taken care of if anything is done, but I want to do it myself.’ The plaintiff relied upon what the testator had said and did nothing further in the matter. The firm on September 1, 1936, leased the three top floors of the trust building and purchased one-half of the trust shares. The testator refused to pay any commission to the plaintiff.

The jury could find upon the evidence that the plaintiff accepted the offer of the testator, of September, 1935, and that upon the performance of his services in seeking and securing tenants for the trust property he was to be paid compensation in the amount and at the times promised by the testator. The plaintiff did not agree to work for any definite time, nor did the testator agree to employ him for any stated period. Both could have terminated the employment when either desired to do so or at least at the end of each week while the employment continued. Harper v. Hassard, 113 Mass. 187;Tubbs v. Cummings Co., 200 Mass. 555, 86 N.E. 921;Campion v. Boston & Maine Railroad, 269 Mass. 579, 169 N.E. 499. It...