Palmer v. Cherney
| Citation | 270 Mass. 551,170 N.E. 459 |
| Parties | PALMER et al. v. CHERNEY et al. |
| Decision Date | 06 March 1930 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Norfolk County; P. M. Keating, Judge.
Action by William H. Palmer and others against William Cherney and others. Verdict for plaintiffs, and defendants bring exceptions.
Judgment for the defendants.
P. E. Troy, of Boston, for plaintiffs.
M. McConnell and J. E. McConnell, both of Boston, for defendants.
This is an action to recover a real estate broker's commission. The declaration is in three counts. The jury returned a general verdict for the plaintiffs. The case is before this court on exceptions to the denial of the defendants' motion for a directed verdict, to the admission of evidence, and to the refusal to give certain rulings.
The defendants were trustees of the Kilsyth Realty Trust. It was agreed that they had power under the terms of the trust to mortgage or sell the trust property, or to deal with it in any way. Joseph E. Palmer, one of the plaintiffs, testified that in December, 1924, he saw the defendants and asked them if they wanted to sell an apartment house which they afterwards sold to one Berman; that they said they did; that this plaintiff asked them if he could sell it for them and they consented; that the plaintiffs listed it in their office and endeavored to sell it; that the offer they gave him for a sale was $115,000 and $120,000 for a trade. This witness further testified that he went to see the defendants without any invitation from them, and had not done business with them before that time; that there was no talk about a commission; and that he told them he was a broker.
Mary T. Palmer, a sister of the plaintiffs, testified that in December, 1924, there were present in the plaintiffs' office the defendant Cherney, Berman, one Herberts, one of the plaintiffs, and herself; that she introduced Cherney to Berman; that there was a conversation at that time respecting the apartment house; that Berman said he was interested in the property and Cherney asked him ‘what he had to offer’; that Berman spoke of a garage and Cherney said he was not interested in it; that Berman then said he had some Wales Street stores, a second mortgage for $6,000 on some property in Chelsea, and some cash. There was evidence that a statement respecting the Wales Street stores including the income, mortgage and assessed valuation, was typewritten and mailed by the plaintiffs to Cherney on the same date. This witness further testified that about two days later she telephoned Cherney and asked him if he had looked over the statement and he replied that he had but was not interested; that no further attempt was made to sell the defendants' property; that about two months later she learned that it had been sold by the defendants to Berman, and that then the present action was brought; that thereafter the defendants came to the plaintiffs' office and in the presence of two of the plaintiffs one of the defendants said, ‘Why didn't you fellows treat us like gentlemen, and we would have taken care of you on the commission end of it’; that Cherney said, ‘We didn't consider the Wales Street property at all’; that he denied having received a statement respecting this property.
Berman was called as a witness by the plaintiffs and testified as to the conversation which he had with Cherney in the plaintiffs' office in December, 1924, above referred to. He testified that Cherney wanted $125,000 for the property; that he (Berman) asked him if he ‘would take some trade’ and Cherney replied ‘what have you got’; that the witness replied that he had a garage on Dorchester Avenue and some other pieces of property, and that Cherney replied ‘No, I will not consider any trade, but I want some cash’; that the witness offered the garage but that Cherney did not want it; that he then offered the Wales Street property; that Cherney said he would not consider any trade, that he wanted cash; that ‘he wanted all cash but the mortgages; that there was a first mortgage of $62,000 and a second mortgage of about $20,000 on the property; that Cherney was disposed to take a larger second mortgage, but the most part of it he wanted in cash; that Cherney didn't tell him how much the second mortgage was, said there was a first mortgage of $62,000 and there was some talk about raising the second mortgage to $38,000; that witness spoke about the second mortgage of $6,000 in Chelsea as part of the consideration and Cherney replied that he didn't want any second mortgage, that he wanted cash; that witness didn't give him any details at all as to the Wales Street property; that some time later he bought the * * * property and paid $125,000 for the same, made up as follows: $62,000 first mortgage; $38,000 second mortgage; $14,500 in an assignment of a second mortgage of property on Glenville Avenue, Brighton, the equity in the Wales Street stores for $6,000, $4,500 in cash, $1,500 in notes, and the balance in adjustments of taxes and interest; that the price was $125,000, and the adjustment about $1,500, making a total of $126,500.’
In reply to questions by the trial judge, Berman testified in substance as follows: ‘that there was a $62,000 first mortgage on the defendant's property and a second mortgage of $20,000 and that Cherney said to him: ...
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Bonin v. Chestnut Hill Towers Realty Co.
... ... 245, 38 N.E. 497 (1894); Carnes v. Finigan, 198 Mass. 128, 84 N.E. 324 (1908); Nichols v. Atherton, 250 Mass. 215, 145 N.E. 277 (1924); Palmer v. Cherney, 270 Mass. 551, 170 N.E. 459 (1930); Pacheco v. Medeiros, 292 Mass. 416, 198 N.E. 506 (1935); Chisholm v. McCarthy, 325 Mass. 72, 74, 88 ... ...
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Bonin v. Chestnut Hill Towers Realty Corp.
... ... Welsh, 8 Mass.App. 367, 371, 394 N.E.2d 978 (1979); Creed v. Apog, 6 Mass.App. 365, 375, 376 N.E.2d 154 (1978). See Palmer v. Cherney, 270 Mass. 551, 556-557, 170 N.E. 459 (1930) (In circumstances showing that broker never produced a customer ready, willing, and able to ... ...
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Pacheco v. Medeiros
...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 fac......
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Pacheco v. Medeiros
... ... 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 ... ...