O'Neill v. Ross
| Decision Date | 18 October 1924 |
| Citation | 250 Mass. 92,145 N.E. 60 |
| Parties | O'NEILL v. ROSS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Hampden County; E. B. Bishop, Judge.
Action of contract by Frank F. O'Neill against John A. Ross for services as real estate broker. Verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.
R. P. & E. J. Stapleton, of Springfield, for plaintiff.
J. W. Mason and A. J. Morse, both of Northampton, for defendant.
This is an action by a real estate broker to recover compensation for services alleged to have been rendered by him to the defendant. The original declaration contained two counts, in each of which it was alleged that the plaintiff was employed by the defendant to negotiate for him the purchase of certain real estate, wherefore the defendant owed the plaintiff either a certain percentage on the price or a fair and reasonable compensation.
At the close of the evidence the judge ruled that there could be no recovery under the declaration. That ruling was right. There was no evidence to support the cause of action set forth in those two counts.
The only evidence tending to support any obligation on the part of the defendant to the plaintiff was to the effect that the latter employed the plaintiff to secure from third persons a release or cancellation of their right to a conveyance in accordance with an agreement in writing with the owner of certain land.
The plaintiff was allowed to amend his declaration by adding three new counts setting forth in several forms of pleading a cause of action, tending to support which there was some evidence. The case was submitted to the jury on these additional counts alone. Every right to which the plaintiff was entitled thus was secured to him.
[1] The photograph of the real estate to which the plaintiff's cause of action related was excluded rightly. It had no bearing on the question whether the contract was made as alleged by the plaintiff. It was irrelevant to any issue raised by the pleadings.
[2] There was no harmful error in the exclusion of the offer of evidence as to the price which the defendant paid for the purchase of the property. There was no evidence tending to show that the plaintiff had any connection with the sale of the property by the owner to the defendant. That transaction on the evidence was arranged entirely between the owner and the defendant, each acting in his own interests and without the intervention of the plaintiff. All that the evidence tended to show in its aspect most favorable to the plaintiff was that he was employed to secure from two persons the release or extinguishment of such rights as they had acquired under an earlier agreement with the owner to sell to them at a stipulated price the real estate in question. The excluded evidence was offered on the ground that it was all a part of one transaction in the mind of the defendant to extinguish the rights of the proposed purchasers under the earlier agreement and himself to buy the real estate from the owner. That was somewhat remote. Exclusion of the evidence on the ground on which it was offered was at best discretionary with the trial judge.
[3] The evidence was not offered on the ground that the price paid by the defendant afforded a basis for the ascertainment of the compensation due to the plaintiff for his services. The general verdict for the defendant on the merits renders the evidence immaterial on that issue.
The counsel for the plaintiff in his argument to the jury stated:
‘While he didn't mean to attack Mr. Morse's character, it was significant that Mr. Morse [a witness called by the defendant] didn't deny the specific statements of Mr. Southwick [the owner of the real estate before its sale to the defendant and a witness called by the plaintiff] about the paper that Mr. Southwick got from Mr. Ross, and that Mr. Southwick said that he went in there and Mr. Morse was adding something to the paper, and afterwards claimed that it had been mislaid and that Mr. Morse had not denied these things.'
The counsel was then stopped by the judge, who stated that this argument could not be permitted, as Mr. Morse had testified to the only time he had seen the paper. The counsel then stated to the judge that Mr. Morse had not been recalled to deny the testimony given to that effect by Mr. Southwick. The judge thereupon said to the jury that he should not have permitted Mr. Morse to be recalled for that purpose because he had already testified to the fact.
The course of the testimony as shown by the bill of exceptions, was that Southwick, when first called by the plaintiff as a witness, testified that the defendant gave him a paper containing an offer for the real estate and that he took it to the office of the witness Morse. After the plaintiff had rested, Mr. Morse was called as a witness by the defendant. He testified in substance that the only time he ever saw the paper addressed to Southwick, signed by the defendant and containing an offer for the real estate, was when both Southwick and Ross were in his office on a specified occasion. After the defendant had rested, Southwick was recalled by the plaintiff and testified in substance that, while he was in another office, the defendant came across from the office of Mr. Morse and said he would like the paper containing his offer for the purpose of making a copy, that he gave the paper to the defendant and a few minutes later went to the office of Mr. Morse, who was then alone, the defendant not being present, and who was
[4] Plainly there was a radical contradiction in the testimony of these two witnesses. Mr. Morse, when called by the defendant, had stated in clear terms that the only time he ever saw the paper was when both the defendant and Southwick were present in his office. The witness Southwick, when recalled after the defendant had rested, gave testimony of a totally different nature on the same point. The defendant was under no obligation to recall Mr. Morse to testify again on the same point. Therefore, the argument of counsel for the plaintiff, urging the...
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...best position to determine whatever harmful effects may have resulted from the jury's exposure to improper argument. O'Neill v. Ross, 250 Mass. 92, 96, 145 N.E. 60 (1924). Shea v. D. & N. Motor Transp. Co., 316 Mass. 553, 555, 55 N.E.2d 950 (1944). Bowers, The Judicial Discretion of Trial C......
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...there may have been was eliminated by the instruction. Commonwealth v. Poisson, 157 Mass. 510, 513, 32 N. E. 906;O'Neill v. Ross, 250 Mass. 92, 96, 145 N. E. 60. It must be assumed that the jury acted in accordance with the instruction. Commonwealth v. Richmond, 207 Mass. 240, 251, 93 N. E.......
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...fair inferences from the evidence. The argument was improper under long established, and well understood, principles. O'Neill v. Ross, 250 Mass. 92, 96--97, 145 N.E. 60; National Shawmut Bank v. Hallett, 322 Mass. 596, 601, 78 N.E.2d 624. Again the judge declined to take the emphatic correc......
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...largely in the discretion of the judge.' Commonwealth v. Witschi, 301 Mass. 459, 462, 17 N.E.2d 549, 551 (1938); O'Neill v. Ross, 250 Mass. 92, 96--97, 145 N.E. 60 (1924). Accord, Commonwealth v. O'Connell, 274 Mass. 315, 323, 174 N.E. 665 (1931); Commonwealth v. Sherman, 294 Mass. 379, 391......