Ross v. Colonial Provisions Co.

• Decision Date: 17 December 1937
• Citation: 299 Mass. 39,12 N.E.2d 98
• Parties: ROSS v. COLONIAL PROVISIONS CO., Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 39

12 N.E.2d 98

ROSS

v.COLONIAL PROVISIONS CO., Inc., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 17, 1937.

Exceptions from Superior Court, Suffolk County; Brogna, Judge.

Action of contract by Frank Ross against the Colonial Provision Company, Incorporated, and Trustee, heard in the Superior Court without a jury. From a finding for plaintiff, defendant saved exceptions.

Exceptions overruled.

D. J. Lyne, of Boston, for plaintiff.

G. L. Rabb and M. M. Rabb, both of Boston, for defendant.

LUMMUS, Justice.

The judge, sitting without a jury, found for the plaintiff in the sum of $5,200 and interest in an action for services. Counts of the declaration based upon a claim for a broker's commission were made immaterial by the finding of the judge that no such commission had been promised. The plaintiff is a real estate broker of thirty years' experience. The defendant is a corporation, organized in 1918, which cures and smokes meats and makes sausages. One sixth of its stock is owned by one Lewis, and the rest is held in equal shares by one Rabinowitz, the president, and one Drucker, the treasurer. Rabinowitz, Drucker, and an employee named Braen were the directors during the events in question. In 1933 it was conducting business in six scattered buildings in the market district of Boston, and was anxious to gather its business under one roof. The plaintiff heard that the defendant was desirous of buying real estate, and as a broker offered the defendant several parcels. One difficulty was that a location satisfactory to the defendant would cost with improvements as much as $180,000, and the defendant did not wish to use its own capital for the purpose. The evidence showed that the defendant at least permitted the plaintiff to perform in its behalf valuable and extended service in negotiating the purchase of land and arranging to finance the purchase and the improvements. The details need not be recited. The judge found that the value of the plaintiff's services was $5,200. There was evidence warranting that finding.

The exception to the refusal of the defendant's sixth request cannot be sustained. That request relates to a broker's commission, and the recovery allowed was for services, not for a commission. The ninth and twelfth requests relate to counts on which the recovery was not based. The fifth request was in substance that the financing of the purchase and the improvements by a certain corporation was ultra vires of that corporation. If so, that would be no reason for denying the plaintiff payment for his services. The tenth and eleventh requests dealt with the contention of the defendant that the plaintiff acted for opposing parties in the negotiations without disclosing the fact. It is true that the plaintiff brought actions for commissions or services against some of those parties as well as against the defendant. But the judge found that ‘all parties had full knowledge of the plaintiff's relationship in the matter, and consented to it,’ and found that there was no employment of the plaintiff by any of the opposing parties against whom suits were brought. Under these circumstances the refusal of the requested rulings was not error. The admission in evidence of the letter sent by the plaintiff to the defendant, dated July 11, 1934, was not error. There was no suggestion at the trial that it was not properly sent by mail.

The defendant requested a ruling in substance that the employment of the plaintiff by Rabinowitz was not authorized by the defendant. There was evidence that Rabinowitz and Drucker owned the great majority of the shares of stock of the defendant, and were its only directors except for Braen who was merely an employee. Apparently they were in active control of its operations. There was evidence that Drucker over a long period of time knew of the efforts of the plaintiff and conversed with him and...