Pacheco v. Medeiros
| Decision Date | 14 November 1935 |
| Citation | 198 N.E. 506,292 Mass. 416 |
| Parties | PACHECO v. MEDEIROS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Action of contract by Antone Pacheco against Manuel Medeiros. From an order of the appellate division dismissing a report of a judge of the district court after finding for plaintiff defendant appeals.
Order dismissing report reversed.
Appeal from Appellate Division of District Court, Southern District, Bristol County.
Knowles & Deponte, of Taunton (F. E. Knowles and V J. Deponte, Jr., both of Taunton, on the brief), for appellant.
A. J B. Cartier, of Fall River, for appellee.
This is an action of contract brought in the district court to recover the sum of $400 alleged to have been earned as a commission. The declaration alleges that on or about August 19, 1931, ‘ the defendant employed the plaintiff to negotiate the sale of his farm, situate on Pleasant Street, in Rehoboth, in said County of Bristol; undertaking and agreeing to pay him as commission a sum agreed, to wit, five per centum (5%), of the selling price of said farm, if he could obtain a purchaser for the farm for the sum of eight thousand ($8,000.00) dollars; that he did procure a purchaser for said farm upon the terms mentioned which was agreed upon by said defendant, and that the defendant owes the plaintiff the sum of four hundred ($400.00) dollars.’ The defendant moved for a finding in his favor on the grounds that ‘ upon the evidence and the law of the case the plaintiff cannot maintain this action,’ and that there ‘ is material variance between the pleadings and the evidence,’ and requested certain rulings. The trial judge denied the motion, made some of the rulings requested, refused to make others and found for the plaintiff. A report to the appellate division was dismissed and the defendant appealed.
The report contains this recital of the evidence, which is stated to be all the evidence material to the questions reported: for $10,500. The plaintiff afterwards asked the defendant to sign an agreement but the defendant refused and said: ‘ No need at all because if you sell it you get your commission, sell or trade.’ Afterwards the plaintiff brought customers to the farm but ‘ For one reason or another they did not agree.’ In August, 1931, the plaintiff showed the defendant's farm to one Gomes and informed the defendant that Gomes had a cottage on Tower Street in Fall River which he would like to trade for the defendant's farm. The defendant said ‘ alright.’ On the Monday following this conversation the plaintiff saw the defendant again at the farm and while there one Tonkonogny came in and told the plaintiff that he was going to trade the defendant's farm with a customer of the plaintiff. The plaintiff objected to this and told Tonkonogny that he could not do that. After Tonkonogny left the premises the plaintiff tole the defendant that if he traded with Gomes he would have to pay the plaintiff's commission ‘ because it is my customer and that is the man I brought here last Saturday.’ The defendant replied, ‘ Well you don't have to talk because I don't know whether I am to trade it or not.’ On the same day as per previous arrangements between the defendant and the plaintiff they went to see the Gomes cottage on Tower Street and Tonkonogny met the defendant and the plaintiff in the Gomes cottage. One Branco then showed the Gomes cottage to the defendant. The plaintiff testified that parties talked the matter over but ‘ for some reason he did not trade that time.’ The plaintiff subsequently sent Branco with the defendant to see other property, and showed the defendant's farm to other customers. Three or four weeks after defendant had looked at the Gomes cottage the plaintiff learned through a third party that the defendant through Tonkonogny was about to trade with Gomes, whereupon the plaintiff Plaintiff then brought suit against the defendant. Asked if he had taken any part in putting through the transaction between Gomes and Medeiros the plaintiff said ‘ Yes I will if they agree.’ And to a further question by the Court if he had gone to the lawyer's office when the deal was put through he answered ‘ No.’ The last time the plaintiff talked with the defendant was during the conference at the Gomes cottage in August. The plaintiff also testified that Gomes wanted $2,500, for his cottage and his commission on the sale of farm property was 5%. The only evidence offered by the defendant was given by Tonkonogny who testified that he was a real estate broker and that sometime in August, 1931, he traded the defendant's property to Gomes.'
1. The motion for a finding for the defendant so far as it was based on the ground that ‘ upon the evidence and the law of the case the plaintiff cannot maintain this action’ was denied rightly.
It is not necessary to consider whether the motion for a finding for the defendant on this ground was within Rule 27 of the District Courts (1932) so as to entitle the defendant to a review of the ruling thereon as matter of right. The ruling of the trial judge thereon was reviewed by the appellate division and is before us on this appeal. McKenna v. Andreassi (Mass.) 197 N.E. 879, and cases cited. The report of this ruling, however, brings before us no question of pleading or of variance between allegations and proof. Weiner v. D. A. Schulte, Inc., 275 Mass. 379, 384, 385, 176 N.E. 114. See, also, Garfield v. Peerless Motor Car Co., 189 Mass. 395, 404, 75 N.E. 695.
The evidence warranted a finding for the plaintiff. The evidence tended to show that the defendant made an offer to the plaintiff to pay him a commission to procure a customer, before the offer was withdrawn, able, ready and willing to acquire the defendant's farm on the defendant's terms, to be accepted by performance by the plaintiff in accordance with those terms. Walsh v. Grant, 256 Mass. 555, 557, 152 N.E. 884, 47 A.L.R. 852. John T. Burns & Sons, Inc., v. Hands, 283 Mass. 420, 422, 186 N.E. 547. On the evidence the defendant's terms as to price, as fixed by his original offer, were a purchase of the defendant's property for $10,500 cash (see Walker v. Russell, 240 Mass. 386, 390, 134 N.E. 388), or an exchange of other property therefor on the basis of a price of $10,500 for the defendant's property. There was evidence that an exchange was actually made between the defendant and one Gomes of the defendant's farm for a cottage belonging to Gomes, but no evidence of the terms of the exchange. From the fact of the exchange, however, it could have been inferred that the terms thereof were acceptable to the defendant. Compare Frankina v. Salpietro, 269 Mass. 292, 295, 168 N.E. 739. And it could have been found that the defendant's offer to the plaintiff was not withdrawn prior to the exchange.
The evidence that the plaintiff showed the defendant's farm to one Gomes, informed the defendant that Gomes had a cottage which he would like to trade for the defendant's farm-in reply to which information the defendant said, ‘ alright’ -ascertained the price which Gomes ‘ wanted’ for his cottage, and went with the defendant to see it, coupled with the evidence that an exchange of the farm for the cottage was actually made, warranted a finding that the plaintiff was the efficient cause of the exchange and, consequently, had procured a customer for the defendant's farm, able, ready and willing to make an exchange therefor on terms acceptable to the defendant, if no new forces entered into the transaction which broke the causal relation between the plaintiff's efforts and the exchange actually made. Holton v. Shepard (Mass.) 197 N.E. 460, and cases cited. See Johnstone v. Cochrane, 231 Mass. 472, 478, 121 N.E. 529.
The absence of evidence of the terms proposed by the plaintiff to the prospective customer and of the terms on which the exchange was made does not preclude a finding that the plaintiff was the efficient cause of the exchange. It is not essential to proof that a broker was the efficient cause of a trade that the terms thereof be identical with those proposed by him to the prospective customer. Hall v. Grace, 179 Mass. 400, 404, 60 N.E. 932; Holton v. Shepard (Mass.) 197 N.E. 460. The terms may differ widely without destroying the essential causal relation (French v. McKay, 181 Mass. 485, 486, 63 N.E. 1068), though a greater similarity between the terms of the actual trade and those proposed to the prospective customer by a competing broker than between the terms of the actual trade and those proposed by the broker originally producing the customer-of which there is no evidence here-may tend to show that the competing broker was the efficient cause of the trade. See Crowninshield v. Foster, 169 Mass. 237, 47 N.E. 879; Cadigan v. Crabtree, 192 Mass. 233, 240, 78 N.E. 412; Carnes v. Finigan, 198 Mass. 128, 131, 84 N.E. 324; Nichols v. Atherton, 250 Mass. 215, 219, 145 N.E. 277; Palmer v. Cherney, 270 Mass. 551, 555, 556, 170 N.E. 459. And a finding that the plaintiff was the efficient cause of the exchange actually made was not precluded by the fact that it was closed in his absence by the defendant personally or...
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