Howard v. Malden Sav. Bank

• Decision Date: 23 May 1938
• Citation: 15 N.E.2d 233,300 Mass. 208
• Parties: FRANK HOWARD v. MALDEN SAVINGS BANK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 208

15 N.E.2d 233

FRANK HOWARD v. MALDEN SAVINGS BANK.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1938

April 5, 1937.

Present: RUGG, C.

J., FIELD, DONAHUE LUMMUS, & QUA, JJ.

Agency, What constitutes. Corporation, Officers and agents. Savings Bank. Practice, Civil, Requests, rulings and instructions.

There was no error in the denial by a judge, hearing an action without a jury of a request that "upon all the evidence the plaintiff is entitled to recover," where the evidence did not require a finding for the plaintiff.

The mere fact that one held the office of treasurer of a savings bank, or of assistant treasurer performing the duties of the treasurer did not require a finding that he had authority to bind the bank on a contract to pay a real estate broker a commission.

CONTRACT. Writ in the Superior Court dated October 17, 1935. The action was heard by Sisk, J.

C. M. Goldman, for the plaintiff.

F.

W. Campbell, for the defendant.

FIELD, J. This action of contract to recover a commission for procuring a customer for real estate owned by the defendant savings bank was tried before a judge sitting without a jury who found for the defendant. The plaintiff's exceptions to the denial of requests made by him and to the granting of requests made by the defendant bring the case here.

The declaration is in two counts, one on an account annexed and one on a special contract alleged to be for the same cause of action. The bill of exceptions contains all the material evidence, the "plaintiff's requests for rulings of law," the "defendant's requests for rulings"; and the judge's "findings of fact," which, with immaterial omissions, is as follows: "The plaintiff is a real estate broker doing business in Boston . . . The defendant is a savings bank located in Malden . . . The defendant was the owner of an estate in Melrose known as Undercliff Apartments. . . . The plaintiff saw E. Foster Queen, acting treasurer of the bank on or about November 10 1934, and several times following November 10 concerning the sale of this property. He testified that Queen told him, in substance, `You get me a buyer for the property and I will pay you full commission,' and thereupon he `went ahead and saw several prospective customers'; that the latter part of November he secured a customer, Samuel J. Freedman, for the property, and on the same day he handed Queen a letter . . . a copy of which is annexed, from the alleged customer with a check made by said Freedman for $1,000; that Queen replied `Fine.' Later, on the same day Queen returned the letter and check to the plaintiff and informed the plaintiff that the property had been sold. The board of investment of the bank had a meeting on November 27, 1934. At this meeting three `offers' for this property were considered by the board including the offer of Samuel J. Freedman . . . . One of the offers other than Freedman's was accepted by the bank. Freedman's written offer to the bank differs materially from the allegations contained in the second count of his [sic] declaration. On all the evidence, I find for the defendant. The plaintiff filed seven requests for rulings, annexed hereto. I deny request numbered one, and in view of my findings of fact the remaining requests become inapplicable and are refused. The defendant filed four requests for rulings, annexed hereto, all of which are given." The judge, also, by granting the defendant's fourth request that "On all the evidence Queen was not authorized to bind the defendant on any contract with the plaintiff," made a finding of fact that Queen was not so authorized. The mere circumstance that this request was described with others under a general heading, "defendant's requests for rulings," does not transform it into a request for a ruling of law. Its form imports that it was directed to a finding of fact. Castano v. Leone, 278 Mass. 429 , 430-431.

The letter referred to in the findings of fact was dated November 26, 1934, addressed to the defendant, purported to be signed by said Samuel J. Freedman and stated, "I wish to submit offer to the Malden Savings Bank, through Frank Howard, agent," to purchase the real estate in question upon terms therein set forth. It stated further, "I am enclosing herewith check for $1,000, for deposit, title to pass on or before December first, 1934. In the event this offer is accepted, it is understood that the Bank will agree to carry out this transaction with my nominee."

The plaintiff cannot recover in this action without proof of an offer by the defendant to pay the plaintiff a commission for procuring a customer for the property in question, before the offer was withdrawn, able, ready and willing to acquire such property on the defendant's terms, to be accepted by performance by the plaintiff. Pacheco v. Medeiros, 292 Mass. 416 , 419. And where, as here, the plaintiff relies upon an offer made by Queen as acting treasurer of the defendant savings bank, the plaintiff was required to prove that Queen had actual or apparent authority to make the offer in behalf of the defendant savings bank or that the defendant savings bank was estopped to deny his authority or ratified such offer.

"The general and special findings . . . are to stand if warranted upon any possible view of the evidence and not vitiated by error of law. And the general finding imports findings of fact, so far as warranted by the evidence, not inconsistent with the special findings." Commissioner of Banks v. Chase Securities Corp. 298 Mass. 285 , 290. Indemnity Ins. Co. v. Paige, 299 Mass. 523 , 524. The questions of law presented for decision by the bill of exceptions are whether there was error in the manner in which the judge dealt with any of the "plaintiff's requests for rulings of law" or the "defendant's requests for rulings." We find therein no error.

1. There was no error in the denial of the plaintiff's first request that "upon all the evidence, the plaintiff is entitled to recover." Clearly this is not a request for a ruling that the evidence warranted a finding for the plaintiff. It is materially different from the request considered in Bresnick v. Heath, 292 Mass. 293 , 296. The judge was not required to grant this request unless, as matter of law, a finding for the plaintiff was required, even though as we need not decide, such a finding would have been permissible. Such a finding was not required as matter of law. The credibility of the testimony -- apart from testimony, if any, by which the defendant was bound -- and the inferences to be drawn from the evidence, within the range of permissible inferences, were for the determination of the judge as trier of fact and cannot be reviewed. Winchester v. Missin, 278 Mass. 427, 428. Without discussing in detail the factors essential to proof of the plaintiff's case, it is enough...