Rich v. Weeks

• Decision Date: 28 June 1932
• Citation: 181 N.E. 712,279 Mass. 452
• Parties: RICH v. WEEKS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 452

181 N.E. 712

RICH

v.WEEKS.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1932.

Exceptions from Superior Court, Suffolk County; Elias B. Bishop, Judge.

Action by Katherine M. Rich against Warren C. Weeks. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

J. M. Graham and A. Robinson, both of Boston, for plaintiff.

A. Van Allen Thomason, of Boston, and C. S. Hartwell, of Arlington Heights, for defendant.

PIERCE, J.

This is an action of contract, tried in the superior court to a jury, wherein the plaintiff sought to recover a sum of money as a commission for having, as she alleged, effected the sale of premises at No. 8 Maitland street, in Boston, from one Hill to the nominee of one Bruce. At the conclusion of the testimony the defendant filed a written motion for the direction of a verdict for the defendant; this motion was denied and the defendant duly excepted. The jury returned a verdict for the plaintiff. The case is before this court on the defendant's exceptions saved to the admission in evidence of certain telephone conversations which the plaintiff testified passed between the defendant and herself, and to the refusal of the judge to direct a verdict for the defendant upon the defendant's motion.

Respecting the issue of the admission of the telephone conversations, the defendant testified that he and one John F. C. McCarthy owned the property jointly and that McCarthy was deceased; and he denied ever having had any conversation with the plaintiff. The plaintiff testified, in substance, that she was in the real estate brokerage business; that McCarthy gave her the full name and address of the defendant, Warren C. Weeks; that she looked up his number in the telephone book; that she asked for Mr. Weeks over the telephone; that she first asked the operator for a number and someone answered; that she had some talk when she got the telephone number and asked for Mr. Weeks and someone replied; that when she asked for Mr. Weeks she thought she was talking with the stenographer and she asked for Mr. Weeks and he came to the telephone; that, later on, she called the same telephone number and asked for Mr. Weeks; that at that time a Mr. Walker was present at her end of the telephone; that someone answered the telephone and after she talked with someone she put Mr. Walker on the line and he talked with someone on the line; that before she introduced Mr. Walker to Mr. Weeks on the telephone she told him (Mr. Weeks) that she had Mr. Walker over to the property and that he was very much interested and would like to see all the suites and asked if he (Mr. Weeks) could make an appointment to show them because the tenants were annoyed and did not want to show them; that she told Mr. Weeks that Mr. Walker represented Mr. Bruce and that she would like to have him meet him and take him through the building; that she said ‘I would like to have you meet Mr. Walker now; he is right here. I will put him on the telephone. This is Mr. Walker who represents Mr. Bruce’; that she heard the conversation at her end of the line and the subject of it was the real estate at 8 Maitland street; that she recognized the voice the second time on the telephone and it was ‘the same voice with which she talked the first time.’ The testimony of the plaintiff was then suspended and Mr. Walker was called as a witness. He testified that the plaintiff called on the telephone and made an appointment; that he heard her call for Mr. Weeks, that someone apparently talked with her over the telephone; that he got in on that conversation and talked with the party on the line; that he had been introduced to Mr. Weeks over the telephone as the Mr. Walker who was being introduced to Mr. Weeks, so he addressed him as Mr. Weeks; that the subject matter of the conversation over the telephone with the person who was introduced to him as Mr. Weeks was the property at 8 Maitland street; that subsequently to that day he met Mr. Weeks and went with him to the property; that Mr. Weeks was the defendant in this case; that after that he talked with Mr. Weeks and they went all through the property and spent probably half an hour there on that occasion. This witness was asked by the judge: ‘Did you recognize the person that you met at your office and went with to the property as the person that you talked with on the telephone early on the same day?’ and he...