Johnstone v. Cochrane

• Decision Date: 02 January 1919
• Citation: 231 Mass. 472
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: GORDON A. JOHNSTONE v. JOHN COCHRANE & others.

231 Mass. 472

GORDON A. JOHNSTONE v. JOHN COCHRANE & others.

Supreme Judicial Court of Massachusetts, Middlesex.

January 2, 1919

November 11, 1918.

Present: RUGG, C J., LORING, BRALEY, PIERCE, & CARROLL, JJ.

Practice, Civil Exceptions, Parties. Agency, Commissions. Broker.

In an action where a verdict had been ordered for the defendants and the plaintiff had alleged exceptions, it appeared by the record that certain evidence of the plaintiff had been admitted by the judge subject to the defendants' exceptions, and it was contended by the defendants before this court, that the evidence thus admitted was incompetent and should not be considered by this court in determining the case upon the plaintiff's evidence, but it was held that it was not necessary to pass upon this question or upon the competency of the evidence thus admitted, because the jury were warranted in finding for the plaintiff against one of the joint defendants without considering the evidence in question.

In an action for a commission for procuring the sale of the property of a manufacturing corporation, of which the defendants were the controlling stockholders, where it appears that the plaintiff procured a purchaser who bought the property in question for $250,000, of which $160,000 was paid in cash and the remaining $90,000 in preferred stock of a new corporation testimony of the plaintiff on his cross-examination, that,

"The plaintiff always held it and offered it at $250,000 and understood it was to be $250,000 cash, `the best we could get for it,'" does not show that the plaintiff's authority was limited to a sale for $250,000 in cash and the last clause of the sentence contradicts that contention.

In the action above described, after contradictory evidence in regard to the negotiations, the principal defendant testified that "From that time on he [the plaintiff] had the negotiations for the sale of the plant personally with Mr. S [the representative of the purchaser] and the interests that he represented who finally purchased." Held, that the jury were warranted in finding that this statement of the defendant was true and entitled the plaintiff to go to the jury.

In the same case it also was held that the fact, that the property for which the plaintiff procured a purchaser belonged to a corporation, of which all the stock was owned by the principal defendant, his sister and his father, did not necessarily make the employment of the plaintiff to procure a sale of the property an employment by the corporation, there being evidence that the principal defendant personally employed the plaintiff to find a purchaser for the property.

The well established principle here was followed, that a broker earns a commission when he brings the property which he is employed to sell to the attention of a third person and then turns that person over to his employer and the property is sold to such third person as the result of the negotiations begun with him by the broker.

In the case above described the second defendant was the sister of the principal defendant and was one of the three holders of all the stock of the corporation, but there was no evidence that she employed the plaintiff or that the principal defendant was authorized to employ him in her behalf, and it was held that a verdict should be ordered in her favor, the fact that she derived benefit from her brother's employment of the plaintiff being no evidence of her liability.

The action above described, after the death of a third defendant, was prosecuted against the principal defendant and his sister jointly, and the evidence showed a right of action against the principal defendant alone. The principal defendant contended that no recovery could be had against him severally; but it was held that by R.L.c. 177, Section 6, such recovery against one of two or more defendants in an action of contract is authorized "although it is found that all the defendants are not jointly liable."

CONTRACT against John Cochrane, Pauline Cochrane and J. Eugene Cochrane for $11,867.41 upon an account annexed as follows:

"July 1, 1912, to commission at five per cent on sale price of $250,000 of real and personal property of the Danielsonville Cotton Company at Killingly, Connecticut $12,500.00

"Credit by money advanced to cover expenses of travelling, advertising, etc. 632.59 --------- $11,867.41 Writ dated January 14, 1916.

Later a suggestion was filed stating the death of the defendant John Cochrane on February 13, 1916, and on March 16, 1917, by agreement of counsel in open court the plaintiff discontinued his action against the defendant John Cochrane without costs.

In the Superior Court the case was tried against the other two defendants before J. F. Brown, J. The plaintiff's evidence is described in the opinion. At the close of the plaintiff's evidence the judge, upon motion of each of the defendants, made the following rulings:

"1. That the plaintiff has not made out a case against this defendant. "2. That upon all the evidence submitted by the plaintiff the jury would not be warranted in finding a verdict against the defendant.

"3. That it appears, upon the plaintiff's own testimony, that whatever the defendant did in the way of sale of the corporation property was done in behalf either of the Danielsonville Cotton Company or the Cochrane Manufacturing Company, and not in his individual capacity.

"4. That the plaintiff has submitted no evidence whatever which would warrant a finding against this defendant.

"5. That there is no evidence that in anything that J. Eugene Cochrane did he was acting as agent for his intestate.

"6. That upon the evidence the sale on which the plaintiff claims a commission was on materially different terms from those on which plaintiff claims he was authorized to arrange for sale."

The judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.

At the trial certain evidence of the plaintiff was admitted by the judge subject to the defendants' exception, and it was contended by the defendants in this court that this evidence was incompetent and should not be considered by this court in determining the case on the plaintiff's evidence, although the defendants, a verdict having been ordered in their favor, filed no bill of exceptions.

R.L.c. 177, Section 6, is as follows: "In an action against two or more defendants upon a contract express or implied, the plaintiff shall be entitled to judgment against such defendants as are defaulted and against those who upon trial are found liable, although it is found that all the defendants are not jointly liable."

G. C. Richards, (A.

R. Pike with him,) for the plaintiff.

F. G. Katzmann, (J.

P. Vahey & J.

R. McCoole with him,) for the defendants.

LORING, J. This is an action to recover a commission for the sale of the property (with an exception which need not be stated) of the Danielsonville Cotton Company. The defendants were John Pauline and J. Eugene Cochrane. It appeared at the trial that John died after this action was brought. On the evidence introduced at the trial the presiding judge directed the jury to return a verdict for the other two defendants and the case is here on an exception to that ruling and upon an exception to the admission of certain evidence introduced against the objection of the defendants.

We do not find it necessary to pass upon the question of evidence, for we are of opinion that, laying that evidence on one side, the jury were warranted in finding for the plaintiff as against the defendant Eugene. At another trial it is not likely that the evidence admitted under the defendants' exception will be presented in the same form.

There was a great deal of confusion in the evidence on many of the details of the transaction here in question. We do not find it necessary to go into or state these details at length. The jury were warranted in finding the following to be the facts of the case: The plaintiff was the agent in charge of the Danielsonville Cotton Company situate at Danielson in Connecticut. The original defendants were the owners of all the corporate stock of that company. In April, 1911, the defendant Eugene asked the plaintiff to find a purchaser for the property and agreed to pay him the usual broker's commission if he was successful in so doing. A year later the plaintiff brought the property to the attention of Frank Bulkeley Smith. Smith came to Danielson and made a thorough inspection of it. At the conclusion of his inspection he asked the plaintiff to put him in communication with his (the plaintiff's) principal. Thereupon the plaintiff arranged for a meeting between Smith and Eugene. This meeting took place at the Worcester Club on the evening of the day on which the request was made, namely, April 2, 1912. Negotiations for the sale of the property were begun between Eugene and Smith at that meeting. Later on Smith introduced Eugene to his principals Kidder, Peabody and Company, and the negotiations begun...