Laferriere v. Saliba

• Decision Date: 01 February 1955
• Docket Number: No. 1832,1832
• Citation: 117 A.2d 380,119 Vt. 25
• Court: Vermont Supreme Court
• Parties: Alex M. LAFERRIERE v. Henry & Irma SALIBA.

Page 380

117 A.2d 380

119 Vt. 25

Alex M. LAFERRIERE v. Henry & Irma SALIBA.

No. 1832.

Supreme Court of Vermont.

Feb. 1, 1955.

Reargument Denied Oct. 4, 1955.

Finn & Davis, Barre, for plaintiff.

Jose' M. Monte, Barre (Monti & Calhoun, Barre, on the brief), for defendant.

Before SHERBURNE, C. J., CLEARY, ADAMS and CHASE, JJ., and SMITH, Superior Court Judge.

ADAMS, Justice.

This is an action of contract brought to recover a commission on the sale of real estate alleged to be due from the defendants to the plaintiff. The writ is in common counts with specifications. The defendants answered by pleading the general issue and a further answer that if an agency existed it was terminated by the defendants prior to the sale in question. Trial was by jury with verdict and judgment for the plaintiff. The case is here on exceptions of the defendants.

The plaintiff's theory of the case was and his evidence tended to show that he was a real estate broker, that the defendants were desirous of selling a house owned by them in the city of Barre, that they had previously listed it with another real estate agent for sale, that later the defendants approached the plaintiff in regard to selling it and as a result thereof an oral agreement was made whereby the plaintiff undertook the sale and the defendants agreed to pay him a 5% commission. That the plaintiff showed one Hutchinson the defendants' house and showed the defendants the Hutchinson house, that the asking price of both houses was discussed, that at different times the asking price of the defendants' house was $24,000 and then $22,500 and for the Hutchinson house it was $18,000 and then $16,000, that when the parties later exchanged houses Hutchinson paid the defendants $6,500 in cash, that the deeds of the respective houses had revenue stamps attached showing the value of the defendants' house as $18,500 and the Hutchinson house as $12,000.

The defendants' theory was and their evidence tended to show that they never approached the plaintiff in regard to selling their house, that the plaintiff approached them with Hutchinson about an exchange of the two houses, that an offer was made by Hutchinson that was declined by the defendants and that the defendants then told the plaintiff that they did not desire to sell their house and would not pay him any commission if the houses were exchanged.

The first exception briefed is to the charge of the court. In the course of its charge the court told the jury, 'It is true some work or negotiations were done by the plaintiff and we have a rule which is sometimes invoked and which you have a right to consider in this case. That is where a person serves another or works for another, even in the absence of any promise of compensation, the law implies that the person who furnishes the work or performs the services is entitled to recover or is entitled to recover the reasonable value of the service which he rendered.' The defendants took the following exceptions, 'The defendants except to the part of the court's charge where you said even though there was no contract if any services were performed he is entitled to recover for those. But I think that is going further than the contract. If the contract was terminated then he was not entitled to recover anything.'

The court then told the jury by way of supplemental charge, 'I think I called your attention to the fact that you might well possibly find at one time there was an agency between the plaintiff and the defendants. If you should later find, before the sale was consummated that it was terminated, particularly having in mind the view taken by the defendants, that an offer of only $4,000.00 was made and that he (they) turned that down and said he (they) was (were) through with the deal, if you find those things to be true, then your verdict will be for the defendants.' The case on the evidence and upon the theory upon which it was tried did not call for a charge upon an implied contract to pay the reasonable value for services performed. The defendants did not renew their exception after the foregoing supplemental charge and while the court did not specifically withdraw the language excepted to, it might have understood that the defendants were satisfied.

A charge is to be taken as a whole and although it may contain some expressions that taken alone, would be error, yet if as a whole it breathes the true spirit and doctrine of the law and there is no fair ground to say that the jury has been misled by it, it ought to stand. Cole v. West Danville Coop. Creamery Ass'n, 103 Vt. 32, 45, 151 A. 568; In re Moxley's Will, 103 Vt. 100, 114, 152 A. 713, and cases cited; Gould v. Gould, 110 Vt. 324, 329, 6 A.2d 24.

An examination of the entire charge shows that the court before the language excepted to, had already told the jury that the plaintiff in order to recover must show that the defendants engaged the plaintiff as a real estate broker to sell or exchange their property and that he procured a customer ready, able and willing to purchase at a price agreed to and accepted by the defendants. This was later repeated as the true test. Again they were told if they believed that the deal was called off the plaintiff failed. They were told that if they were satisfied that the plaintiff was entitled to recover the amount of the commission it would be 5% of either the $18,500 or the $22,500 value. The substance of these essentials was repeated several times.

Furthermore, any doubt in regard to the matter is resolved against the defendants by what transpired after the jury had received the case and deliberated. They then returned and asked the court if they had to take the full amount of the commission or if they could set the amount themselves. They were then told that in the event they should conclude that the plaintiff had established his case and is entitled to recover, there appears to be no opportunity to compromise and the plaintiff is then entitled to recover a 5% commission of either $18,500 or $22,500 plus interest at six per cent otherwise their verdict would be for the defendants. No exception was taken to this by the defendants. The court thus took that part of the charge to which the original exception applied out of the case. The verdict was for 5% of $18,500 plus interest. It is plain that the jury was not misled and the error complained of was rendered harmless. This exception is not sustained.

After verdict and before judgment, the defendants made two motions to set aside the verdict. The first is for the reason that the verdict is against the weight of the evidence and contains three grounds. The second is that the verdict is not supported by the evidence and contains three grounds other than the three contained in the first motion.

The expression 'against the weight of the evidence' means the same thing as the expression 'against the evidence' or 'contrary to the evidence'. Russell v. Pilger, 113 Vt. 537, 550, 37 A.2d 403.

A motion to set aside a verdict on the ground that it is against the evidence is addressed to the discretion of the trial court and on the ground that there is no supporting evidence raises a question of law. A motion on the latter ground is the same in nature and substance as a motion for a directed verdict and the ruling of the trial court in denying it must be sustained if the evidence taken in the most favorable light for the prevailing party fairly and reasonably tends to support the verdict. Gould v. Gould, supra, 110 Vt. 324, 331, 6 A.2d 24, and cases cited; Belock v. State Mutual Fire Ins. Co., 106 Vt. 435, 439, 175 A. 19, and cases cited; Long v. Leonard, 113 Vt. 258, 263, 32 A.2d 679; Collins v. Fogg, 110 Vt. 465, 470, 8 A.2d 684, and cases cited; Wilford v. Salvucci, 117 Vt. 495, 498, 95 A.2d 37.

The defendants do not brief any of the grounds of the motion to set aside the verdict as against the weight of the evidence and the first two grounds of the motion to set aside the verdict as not supported by the evidence, so they are waived. Fletcher v. Manning, 118 Vt. 240, 241, 105 A.2d 264, and cases cited; E. A. Strout Realty Agency v. Wooster, 118 Vt. 66, 99 A.2d 689, and cases cited.

The third ground of the latter motion which is the one briefed by the defendant is, 'That the plaintiff could not act as agent of both the defendants and Hutchinson without disclosing all the facts to the two principals and that he certainly did not do this and he could recover no commission.' They say that the evidence showed that the plaintiff claimed and collected a commission of Hutchinson and in seeking to recover a commission of these defendants he is claiming to act as agent for both parties in the transaction. They charge in their brief that the evidence is destitute of any consent by the defendants and Hutchinson to show that they consented to the payment of a double commission to the plaintiff or to a dual agency of the plaintiff and that the enforcement of the plaintiff's claim should be denied as a matter of law. They call attention that the court in its charge said that the plaintiff was acting 'in somewhat of a dual capacity.'

They rely upon the case of Leno v. Stewart, 89 Vt. 286, 95 A. 539. In that case this Court, 89 Vt. at page 289, 95 A. at page 540, omitting citations, said: 'The law requires the utmost good faith and loyalty from agents for the furtherance and advancement of the interests of their principals. * * * The plaintiff's action did not meet this requirement when, without the consent of the parties, he accepted employment by both, and in consequence thereof was interested to bring them together in trade, to the exclusion of all others. In such circumstances the interests of each principal were in danger of prejudice from the adverse interest in the agent. The twofold interests and relations of the plaintiff were inconsistent with the interests of both sides, and he had no right to be engaged by both without...