Spevack v. Budish

• Decision Date: 10 March 1921
• Citation: 238 Mass. 215,130 N.E. 191
• Parties: SPEVACK et al. v. BUDISH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 215

130 N.E. 191

SPEVACK et al.

v.BUDISH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 10, 1921.

Appeal from Municipal Court of Boston, Appellate Division.

Action by Harry Spevack and others against Louis Budish, resulting in judgment for defendant, the case being reported to the appellate division of the municipal court of the city of Boston, which dismissed the report, and plaintiffs appeal. Order dismissing report reversed, and judgment ordered entered for plaintiffs.

Edward M. Dangel, of Boston, for appellants.

JENNEY, J.

The plaintiffs, who are real estate brokers, were employed by the defendant to procure a sale or an exchange of real estate belonging to him. They brought Abraham Golder to his attention. As a result, on December 11, 1917, a written contract was made by which Golder and the defendant agreed to exchange properties. This contract contained the following paragraph:

‘It is hereby agreed and understood that the said Louis Budish is to pay to Harry Spevack and Myer Pave the sum of one hundred ($100) dollars as commission, and the said Abraham Golder is to pay to the said Harry Spevack and Myer Pave the sum of fifty ($50) dollars as commission.’

The contract contained no provision as to the effect upon the rights of any party of a failure or inability to give title. It is signed and sealed by the owners of the real estate to which it relates and by the plaintiffs. The time fixed for the conveyances was extended; objections as to title were made by both owners, and the exchange never was made.

The agreement contained an unconditional promise to and with the plaintiffs to pay to them a definite amount without any contingency. No time was fixed for payment; hence the amount was payable on demand; and the bringing of an action to recover the amount constituted a demand. Warren v. Wheeler, 8 Metc. 97. The agreement does not provide that the amount should be payable with reference to the performance of the terms of the agreement relating to the exchange. It is not a document of a merely evidentiary character, because it created an obligation, and did not simply recognize one already in existence or thereafter to arise.

The report recites:

‘The defendant offered evidence to prove that there existed an oral understanding at the time of the signing and execution of said agreement to the effect that the plaintiffs should be entitled to their commission only when the exchange of said property and passage of title should be carried out. The court admitted said evidence. The plaintiffs did not at the time of its admission orally claim a right to [a] report upon such evidence, but within two days thereafter did file in the clerk's office a written claim of report thereon.’

By St. 1912, c. 649, § 8, it is provided that a party desiring to preserve his right of determination of matters of law in cases tried in the municipal court of the city of Boston must, where the objection is to the admission or exclusion of evidence, claim a report to the appellate division of the court at the time of the ruling. As this was not done, no question as to the admissibility of the evidence was saved; and the plaintiffs' later request for a report of the question and its admissibility was properly refused. G. L. c. 231, § 108.

The plaintiffs requested the trial judge to rule that on all the evidence they were entitled to a finding. This was refused; and the only question properly presented by the report is whether this action was right.

The evidence admitted without objection could not modify or control the terms of the contract. It is a rule of substantive law that, when a written contract is made, it fixes the rights of the parties and cannot be varied by antecedent negotiation or contemporaneous qualification. Mears v. Smith, 199 Mass. 319, 85 N. E. 165;Butterick Publishing Co. v. Fisher, 203 Mass. 122, 89 N. E. 189,133 Am. St. Rep. 283;Fairfield v. Lowry, 207 Mass. 352, 93 N. E. 598.Boston Supply Co. v. Rubin, 214 Mass. 217, 221, 101 N. E. 133;Rochester Tumbler Works v. Mitchell Woodbury Co., 215 Mass. 194, 197, 102 N. E. 438;Cawley v. Jean, 218 Mass. 263, 268, 105 N. E. 1007;Goldenberg v. Taglino, 218...