Rich v. Weeks
| Citation | 279 Mass. 452 |
| Parties | KATHERINE M. RICH v. WARREN C. WEEKS. |
| Decision Date | 27 June 1932 |
| Court | United States State Supreme Judicial Court of Massachusetts |
December 11, 1931.
Present: RUGG, C.
J., CROSBY, PIERCE WAIT, FIELD, & DONAHUE, JJ.
Evidence Competency, Telephone conversation. Broker, Commission.
Evidence, at the trial of an action by a broker against a landowner for a commission, showing in substance that a plaintiff was given the full name and address of the defendant; that he looked up the defendant's telephone number, called the number and asked for the defendant, whereupon a man came to the telephone; that thereupon the plaintiff and a prospective customer who was with the plaintiff had a telephone conversation with the man concerning the customer's examining the property; that an appointment was made; and that subsequently the customer met the defendant and went to the property with him, warranted the trial judge in submitting to the jury the issue, whether the defendant was sufficiently identified as the person who talked with the plaintiff and the customer, notwithstanding testimony by the defendant denying that he ever saw or heard of the plaintiff until the commencement of the action and testimony by the plaintiff and the customer that they could not identify the defendant as the speaker over the telephone by recognizing his voice.
Further evidence at the trial above described, that the plaintiff secured a statement concerning the property from the defendant, who said he would pay the plaintiff a brokerage fee; that the defendant refused one offer from the prospective customer secured by the plaintiff and stated to the plaintiff his lowest selling price; that the customer was acting for another; that, in the absence of the plaintiff and without his knowledge, the customer induced his principal to execute a contract for the purchase of the property at a price greater than the defendant's lowest price; and that the sale thus was consummated, warranted a verdict for the plaintiff.
CONTRACT by a broker for a commission. Writ dated January 10, 1928.
The action was tried in the Superior Court before Bishop, J. The plaintiff testified that, after securing the offer from Walker for $10,000 or $10,500, she was called away for a time and did not learn of the sale from Hill to Bruce until after her return; and that she did not know anything of the contract between Hill and Bruce and had no part in making it. Other material evidence is stated in the opinion. The judge denied a motion by the defendant that a verdict be ordered in his favor. There was a verdict for the plaintiff in the sum of $627.38. The defendant alleged exceptions.
The case was argued at the bar in December, 1931, before Rugg, C.J., Pierce Wait, & Field, JJ., and afterwards was submitted on briefs to all the then Justices.
A.V.A. Thomason, (C.S. Hartwell with him,) for the defendant. J.M. Graham, (A. Robinson with him,) for the plaintiff.
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 number 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 expected. 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 Weeks over the telephone; that she first asked the operator for a number and some one answered; that she had some talk when she got the telephone number and asked for Weeks and some one replied; that when she asked for Weeks she thought she was talking with the stenographer and she asked for Weeks and he came to the telephone; that, later on, she called the same telephone number and asked for Weeks; that at that time one Walker was present at her end of the telephone; that some one answered the telephone and after she talked with some one she put Walker on the line and he talked with some one on the line; that before she introduced Walker to Weeks on the telephone she told him (Weeks) that she had Walker over to the property and that he was very much interested and would like to see all the suites and asked if he (Weeks) could make an...
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