Libby v. Smith

• Decision Date: 28 February 1936
• Citation: 200 N.E. 369,293 Mass. 465
• Parties: LIBBY v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 465

200 N.E. 369

LIBBY

v.SMITH.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1936.

Report from Superior Court, Suffolk County; F. T. Hammond, Judge.

Action of contract by Samuel Libby against Arthur H. Smith. A verdict for defendant, pursuant to leave reserved, was ordered by the trial judge after recording of a jury's verdict for plaintiff in the sum of $1,161.03, and the case was reported to the Supreme Judicial Court.

Plaintiff's exceptions sustained, verdict upheld, and entry of judgment for plaintiff on the verdict ordered.E. M. Dangel, L. E. Sherry, and M. Abrams, all of Boston, for plaintiff.

H. F. R. Dolan, of Boston, for defendant.

DONAHUE, Judge.

The plaintiff, a real estate broker, has brought this action to recover a commission for procuring one Alpert as a tenant of a portion of a store in Central Square, Cambridge. A jury in the Superior Court returned a verdict for the plaintiff and an affirmative answer to the question submitted by the trial judge: ‘Ought Smith as a reasonable man to have supposed that in bringing Alpert to see him Libby was performing a service for Smith for which he might reasonably expect Smith to pay?’ The judge who had reserved leave under the statute (G.L.Ter.Ed. c. 231, § 120) thereafter allowed a motion of the defendant that a verdict be entered for him. To this the plaintiff excepted and the judge reported for the decision of this court the question whether a verdict should have been entered for the defendant.

The evidence is contradictory as to many material matters but the testimony of the plaintiff and of the defendant are in accord to this extent: the plaintiff and the defendant were strangers when in October, 1931, the plaintiff telephoned to the defendant at his place of business; they talked on the subject of the leasing of a portion of a store in Central Square, Cambridge, to a person whose name was not then mentioned by the plaintiff and it was agreed that on the next day the plaintiff should bring that person to the defendant to discuss the matter of such a lease. It is not in dispute that on the following day the plaintiff brought Alpert to the defendant's office where the matter of such a lease was discussed and that some weeks later a lease to Alpert was made.

One of the contentions of the defendant is that the evidence did not afford the basis for a finding of the employment by the defendant of the plaintiff to procure a tenant for the store and hence that there was no ground for finding him liable to the plaintiff. While there was ample evidence to justify the conclusion that there was no such employment, there was testimony by the plaintiff, the truthfulness of which was for the jury, which would support a finding that the plaintiff was employed to procure a tenant for the store. If the plaintiff was believed he began his talk with the defendant over the telephone by announcing that he was a real estate broker and asking if ‘the defendant was contemplating the leasing of his store’ in Central Square, for a market; when the defendant admitted that he was, the plaintiff said that ‘he had a customer a man whom he had been showing several locations for a market and he though he could probably interest him in this store’; he then asked the defendant ‘if he had any objection to a broker handling it for him’; to this the defendant replied, ‘No, I would be glad to have you do it’; and the plaintiff said, ‘all right * * *’; the plaintiff asked when he could see the defendant, the latter fixed a time on the following day and the plaintiff said ‘I will bring my man along with me’ at the time fixed. The defendant was a business man experienced in the management and to some extent at lease with the leasing of stores. If the jury believed that the testimony of the plaintiff as to the conversation was true a finding of an employment of the plaintiff to procure a tenant was warranted. Maxwell v. Massachusetts Title Ins. Co., 206 Mass. 197, 201, 92 N.E. 42;Isenberg v. Rosenthal, 240 Mass. 108, 109, 132 N.E. 716.

The plaintiff testified that in a discussion on the following day between himself, Alpert and the defendant as to the terms of a lease, the latter said that ‘they would have to let it go for a little while before the defendant could enter into a lease’ because ‘his companies were not in any too good condition and that he wanted to straighten them out first and after he had done this he would give a lease.’ The plaintiff also testified that a few days later,before any lease was given to Alpert, he went to the defendant, mentioned the reference by the defendant in the earlier talk to ‘his companies' and stated that he was not interested in the companies and was looking to the defendant for the payment of the commission, and that the defendant replied ‘you will get a commission and I will pay it.’ If this were believed it would add support to the plaintiff's contention that there had been an employment at the time of his telephone talk with the defendant.

The defendant further contends that if any employment of the plaintiff could properly have been found it was not an employment by the defendant personally but was an employment by the Manhattan Food Stores Company a corporation of which the defendant was president and general manager. It does not appear in the testimony of either plaintiff or defendant that the name of the corporation was ever mentioned in their conversations up to the time the lease was given. The plaintiff testified that he heard that the defendant was the owner of the store. In their conversations both parties referred to the store as the defendant's. The plaintiff proposed to handle the matter as broker for ‘him’ (the defendant) and the latter accepted without any contrary suggestion. The name ‘Manhattan Food Stores Company’ appeared on the store in question and on the store where the defendant had his office but we find nothing else in the testimony binding on the plaintiff tending to indicate that any one else than the defendant was concerned with the transaction of employment of procuring a tenant. The conduct of the defendant in his dealings with the plaintiff was consistent with the defendant personally employing the plaintiff. The fact that the defendant did not own the store is a fact bearing upon the question whether he employed the plaintiff as broker to find a tenant, but this is the only bearing which that fact has. Johnstone v. Cochrane, 231 Mass. 472, 477, 121 N.E. 529. It was a question of fact for the jury whether the defendant was personally bound. O'Neill v. Reardon, 238 Mass. 120, 123, 130 N.E. 89;Zilli v. Rome, 240 Mass. 368, 371, 134 N.E. 622.

An attorney employed by the plaintiff, shortly after the lease to Alpert was delivered, brought an action against the corporation to recover a commission for procuring Alpert as a tenant of the store. So far as appears that action is still pending and it is not contended by the defendant that it ever went to judgment. The plaintiff testified that he instructed the attorney to bring the action against the defendant and did not tell him to sue the corporation. An answer of the plaintiff to an interrogatory filed by the defendant in the present case states that an action was brought against the corporation but that the attorney did not follow the plaintiff's instructions to bring suit against the defendant at the same time. In any event the evidence relating to the bringing of the other action was not conclusive against a finding...