McCarthy v. Daggett

• Decision Date: 25 June 1962
• Parties: Gerald M. McCARTHY v. Dewey E. DAGGETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 502

183 N.E.2d 502

344 Mass. 577

Gerald M. McCARTHY v. Dewey E. DAGGETT.

Supreme Judicial Court of Massachusetts, Essex.

Argued April 3, 1962.

Decided June 25, 1962.

John R. Ambrogne, Boston (Robert M. Bonin, Boston, with him), for defendant.

Frank E. Riley, Jr., Lynn (John E. O'Keefe, Lynn, with him), for plaintiff.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK, and SPIEGEL, JJ.

WILKINS, Chief Justice.

In M. DeMatteo Const. Co. v. Daggett, 341 Mass. 252, 168 N.E.2d 276, which was a bill in equity for specific performance of an agreement by the defendant dated February 7, 1957, to sell a large tract of marshland in Revere and Saugus, there was a decree for the plaintiff. In this action of contract by a real estate broker for a commission on the sale, there are two counts. On the first count, on an express contract to pay the usual broker's commission for procuring a customer, there was a verdict for the defendant. On the second count, on an account annexed for services rendered in procuring a customer, there was a verdict for the plaintiff for $32,500. The defendant's exceptions which we find it necessary to consider are (1) to the allowance of the plaintiff's motion to strike a part of the defendant's answer setting up the defendant's mental incapacity, and (2) to the denial of his motion for a directed verdict. We consider them in inverse order.

1. The one ground upon which the defendant contends his motion for a directed verdict should have been granted is that the action was prematurely brought. The writ in the present action is dated August 19, 1957, ten days later than the filing of the bill in equity. The equity suit was based upon a written contract dated February 7, 1957, between M. DeMatteo Construction Company (DeMatteo) and Daggett. The bill of exceptions in the present action states that the judge at the trial treated count 1 as referring to that contract (exhibit 3), which contained a paragraph reading: 'XI. A commission is to be paid upon the passing of papers by the seller to the broker herein, Gerald M. McCarthy of Saugus, Massachusetts, in an amount as agreed upon between the seller and said broker.' Following the signatures of the parties at the end appeared the following: 'I hereby assent to the provisions of paragraph #11. [Sgd.] Gerald M. McCarthy.' Exhibit 3 also provided for the delivery of the deed on May 7, 1957, 'unless otherwise agreed upon in writing,' but no deed was in fact delivered until August 15, 1960, and then as a result of the final decree in the suit in equity. The defendant nowhere contends that the plaintiff was not the efficient cause of the sale, and there was evidence warranting the jury in finding that he was. See Fitzpatrick v. Gilson, 176 Mass. 477, 478- 479, 57 N.E. 1000; Driscoll v. Bunar, 328 Mass. 398, 400, 103 N.E.2d 809; MacDonald v. Mihalopoulos, 337 Mass. 260, 262, 149 N.E.2d 138.

The argument as to prematurity of suit is specious. Recovery on count 2 in quantum meruit, accompanied by the verdict for the defendant on count 1, put the express contract out of the case. Its provisions now relied upon fell with it. The provision as to payment 'upon the passing of papers,' even where applicable, does not necessarily create a condition precedent to payment, but may specify a time beyond which the broker is not to be kept waiting for his commission. See Alvord v. Cook, 174 Mass. 120, 124, 54 N.E. 499; Rosenthal v. Schwartz, 214 Mass. 371, 373, 101 N.E. 1070; Canton v. Thomas, 264 Mass. 457, 459, 162 N.E. 769. Compare Spritz v. Brockton Sav. Bank, 305 Mass. 170, 171 25 N.E.2d 155; E. A. Strout Realty Agency, Inc. v. Gargan, 328 Mass. 524, 527, 105 N.E.2d 208.

2. The second paragraph of the defendant's answer set up that 'at the time of the alleged employment referred to in the plaintiff's declaration the plaintiff [sic] was insane and incapable of entering into any legal and binding agreement, wherefore the defendant owes the plaintiff nothing.' See Lewis v. Russell, 304 Mass. 41, 43, 22 N.E.2d 606. At the trial the plaintiff filed a written motion 'to strike paragraph 2 of the defendant's answer setting forth insanity on the part of the defendant, on the ground that this issue was fully tried before the Superior Court and the Supreme Judicial Court and was decided in the case of M. DeMatteo Construction Co. v. Dewey E. Daggett.' When first presented, the motion was denied, but on the following day it was allowed by the judge.

The plaintiff contends that the defendant is barred from raising the issue of mental incapacity because of '(1) res judicata and (2) the doctrine of collateral estoppel by judgment.' This is called 'collateral estoppel' in Restatement: Judgments, § 68, comment a. In Wishnewsky v. Saugus, 325 Mass. 191, 194, 89 N.E.2d 783, cited by the plaintiff, the term used is 'estoppel by judgment.' We note in passing that there...