Lord v. Williams

• Decision Date: 18 April 1927
• Citation: 156 N.E. 421,259 Mass. 278
• Parties: LORD v. WILLIAMS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 278

156 N.E. 421

LORD

v.WILLIAMS.

Supreme Judicial Court of Massachusetts, Suffolk.

April 18, 1927.

Exceptions from Superior Court, Suffolk County; Stanley E. Qua, Judge.

Action by Earl T. Lord against Arthur A. Williams. On defendant's exceptions after general verdict for plaintiff. Exceptions overruled.

C. B. Cross and J. S. McCann, both of Boston, for plaintiff.

W. R. Bigelow, of Boston, for defendant.

PIERCE, J.

This is an action of contract brought by a real estate broker to recover a commission. The first count of the declaration was to recover reasonable compensation for procuring a purchaser for land of the defendant, and the second count for services in negotiating a sale of the same property. The answer was a general denial and a modification of the agreement constituting accord and satisfaction between the parties.

The case comes before this court, after a general verdict for the plaintiff, on exceptions taken to the judge's refusals to direct a verdict for the defendant and to give the defendant's requests for rulings numbered 9 to 13. These requests are as follows:

‘9. No legal and binding contract between Mr. Gutlon and the defendant for the purchase and sale of the property in question was ever made.

‘10. Upon all the evidence the written agreement dated January 7 was not delivered to Mr. Williams and the delivery assented to by him as a binding contract.

‘11. The plaintiff's letter to the defendant dated January 11 in which the signed agreement dated January 7 was returned to Mr. Williams called for further negotiations between the parties which were subsequently entered into, so that the receipt of that letter containing the written agreement by the defendant was not a final delivery of that agreement.

‘12. It was competent for Mr. Gutlon and Mr. Williams to vary the written agreement dated January 7 by a subsequent oral agreement between themselves, and such subsequent oral agreement would then be substituted for the written agreement which was thereupon abandoned or rescinded.

‘13. If Mr. Lord knew of and assented to the substitution of a subsequent oral agreement for the written agreement dated January 7, he cannot claim a commission because of the signing of the agreement dated January 7.’

No objections were taken to any part of the judge's charge. The judge submitted to the jury for its determination the question:

‘Was it a condition of the plaintiff's employment that an actual sale should take place before a commission should be earned?’

The jury answered: ‘No.’ It was agreed that anything that was signed in regard to the transaction in question by Herbert T. Boardman was done as agnet for the defendant.

The pertinent facts of the record, succinctly stated, are in substance as follows:

The defendant listed the property in question with the plaintiff for sale and the latter brought the property to the attention of one Moris Gutlon. Thereafter the plaintiff and Gutlon had conferences with the defendant about the purchase and sale of this property.

On January 4, 1924, the plaintiff had a conversation with the defendant ‘which was substantially as stated’ in the following letter addressed to the defendant:

‘Confirming our conversation over the telephone this morning, the following is my interpretation of the deal as accepted by you and Mr. Gutlon: Moris Gutlon, of Boston, is to purchase from you No. 52 Kneeland street subject to a first mortgage of $9,000 at 5 1/2 per cent. and No. 54 Kneeland street subject to a first mortgage of $9,000 at 6 per cent., paying you $40,000 for both properties, you to carry the properties on a second mortgage above the $18,000 on both properties for the term of one year, he to give you $1,000 cash on taking title to show good faith, the $1,000 to be returned to Moris Gutlon as soon as you are satisfied that he will faithfully perform his part of the agreement. A commission of $1,000 is to be paid to E. T. Lord, 15 State street, Boston, on passing title. I trust that I have gotten this all straight and that it will be possible for you to have the agreements ready for signature early Monday morning. * * * Mr. Gutlon informed me that he had a side agreement with you, that he made over the telephone, and that I know nothing about, that in the event of his paying you in full the second mortgage in 60 days that you would return to him $2,000, the difference between what you agreed to take ($38,000) originally and $40,000, if you carried the second mortgage through for the year.’

Shortly after receiving this letter, the plaintiff in a conversation with the defendant agreed:

‘That in the event of Mr. Gutlon paying the mortgages, and his buying the property at $38,000, the commission was to be paid on the basis of $38,000 instead of $40,000.’

Pursuant to this letter agreements were drafted, subsequently amended, finally signed under date of January 7, 1924, by both parties, and one delivered to Gutlon and the other to the defendant. Some inconclusive correspondence followed.

The agreement provided that the premises were to be conveyed on January 30, 1924. But this was not done; and during the negotiations the defendant and Gutlon agreed to put through the transaction on February 15, 1924, at 2 o'clock, at the Suffolk registry of deeds. After January 30, 1924, the defendant and Gutlon carried on negotiations looking toward certain changes in the terms of the agreement; but the plaintiff testified, ‘I was not aware of what had gone on,’ and on cross-examination testified:

‘That he heard Mr. Gutlon testify that Gutlon was reporting to him every day practically before this transaction on the 15th of February with reference to his negotiations with Mr. Williams, and would say that it was not every day. He was not reporting to me at all. Mr. Gutlon and Mr. Williams had been in conference a good many times. In other words, I couldn't control either of them. They would get together irrespective of brokers, and didn't know what they were talking about. I was not kept informed by Mr. Gutlon of the progress of his talks with Mr. Williams with reference to making the final arrangement. I understood there was some arrangement that there was to be no payment of $1,000 in cash when this transaction went through, if it did go through on the 15th of February. It was either Mr. Gutlon or Mr. Williams who told me that.’

On February 9, 1924, the defendant wrote and Gutlon received the letter which follows:

‘As I understand it, you are still willing to put through the trade on 52 and 54 Kneeland street as of January 30, 1924, with my taking a first mortgage to run one year for $40,000, which will stand as the purchase price and you to pay adjustments amounting to $305.80 together with a deposit of $1,000 in cash, which is to be returned to you as soon as we are satisfied that you will materially improve the property. I also understand and agree...