Nichols v. Atherton

• Decision Date: 07 November 1924
• Citation: 250 Mass. 215,145 N.E. 277
• Parties: NICHOLS v. ATHERTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 215

145 N.E. 277

NICHOLS

v.ATHERTON et al.

Supreme Judicial Court of Massachusetts, Franklin.

Nov. 7, 1924.

Appeal from Superior Court, Franklin County.

Bill in equity by Madelene T. Nichols against Fred E. Atherton and W. Edward Mason to recover broker's commission and to prevent payment of commission to the last-named defendant. From interlocutory and final decrees in favor of last-named defendant, plaintiff appeals. Affirmed.

W. A. Davenport and C. Fairhurst, both of Greenfield, for appellant.

T. R. Hickey, of Northampton, for respondent Mason.

CROSBY, J.

This is a bill in equity to recover a broker's commission for the sale of real estate owned by the defendant Atherton, and to prevent the payment of that commission to the defendant Mason, another broker. Atherton, in his answer, alleges that the plaintiff and Mason both claim to be entitled to the commission, and prays that they be ordered to interplead. Mason filed an answer and contended therein that he had procured the sale and was entitled to the commission. The case was referred to a master who made certain findings of fact, and upon these facts found that the sale of the property was the result of the efforts of the plaintiff, although such sale was completed on terms somewhat different from those offered through her. The case thereafter was heard by a judge of the superior court who, upon the facts found by the master, adjudged that the services of the defendant Mason, and not those of the plaintiff, were the predominating, efficient cause of the sale and that he was entitled to the commission. An interlocutory and a final decree were entered in accordance with such finding, and the case is before us on appeal from those decrees. The evidence is not reported.

[1] The question arises whether the master made a finding upon all the evidence that the plaintiff was the efficient, predominating cause of the sale, or whether he made that finding as an inference from the other findings made by him. If the former, it must stand. If, as we construe this finding, it was made as an inference from the other findings, then it is our province and duty to draw the proper inferences from the facts found, unaffected by the conclusion reached by the trial judge, as all the facts are stated in the master's report and so far as we are concerned do not depend upon the testimony of witnesses. Harvey-Watts Co. v. Worcester Umbrella Co., 193 Mass. 138, 78 N. E. 886;Glover v. Waltham Laundry Co., 235 Mass. 330, 333, 334, 127 N. E. 420;Moss v. Old Colony Trust Co., 246 Mass. 139, 144, 140 N. E. 803;Caines v. Sawyer, 248 Mass. 368, 143 N. E. 326.

The question then is, What are the substantial facts upon which the master drew the inference that the sale was the result of the efforts of the plaintiff? Briefly stated, the facts found by the master are as follows: The plaintiff, a real estate broker, was requested by the defendant Atherton to find a customer for his property; he agreed to pay her a commission of two and one-half per cent. of the selling price, and told her his price was $65,000. The plaintiff then went to one Barney J. Michelman and tried to interest him in the property. He sent her to his brother Louis, and thereafter he negotiations were principally with the latter. The Michelmans became interested in the property and at their request the plaintiff ascertained that there were two mortgages thereon, and that Atherton, in case of sale, would take a third mortgage from the purchaser. The plaintiff made inquiries of banks and individuals to induce them to assist the Michelmans in financing the purchase if they should decide to buy. She went to a bank official for this purpose who suggested that Michelman see him about it; this suggestion was communicated to both the Michelmans; soon afterwards they told her they would offer $60,000 for the property which offer she communicated to Atherton who declined it and stated to her that his price was $65,000. He also told her that Mason had a customer for $64,000. The plaintiff did not see the Michelmans again before the property was sold to them.

[2] The master also found that, while the plaintiff was attempting to bring about the sale, the defendant Mason, who was also a real estate broker, saw Atherton and asked about the property; that the latter told him the price was $65,000 and he...