Spritz v. Lishner
| Decision Date | 06 January 1969 |
| Citation | 355 Mass. 162,243 N.E.2d 163 |
| Parties | William SPRITZ v. Joseph LISHNER et al., Executors. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Neil L. Chayet, Boston, (Alan W. Heifetz, Boston, with him) for defendants.
Jerome D. Goodman, Boston, for plaintiff.
Before WILKINS, C.J., and CUTTER, KIRK, SPIEGEL, and REARDON, JJ.
This action of contract by writ dated June 15, 1964, and returnable to the Municipal Court of the City of Boston, was removed by the defendants to the Superior Court. The declaration is in three counts, all for the same cause of action. The case was transferred for trial to the Municipal Court under G.L. c. 231, § 102C. This resulted in a finding for the plaintiff in the amount of $2,000 on counts 1 and 2. The case was then retransferred to the Superior Court, where it was tried before a judge sitting without jury. He found for the defendants on counts 1 and 3, but found for the plaintiff on count 2 in the amount of $2,000 without interest. There were no other findings.
The second count is on an account annexed, the first item being 'Balance of commission due on sale of property at 20--28 Colborne Road, Brighton, Mass. on or about July 8, 1959 $2,000.' The defendants' answer set up a general release of Lishner by the plaintiff in consideration of $2,500 and recited that the release was 'more especially on account of real estate commission due from the said Barney B. Lishner on the sale of the real estate numbered 20--24--28 Colborne Road, Brighton, Mass.'
The plaintiff was a real estate broker for more than forty years. In 1959 Lishner, as owner, listed the property at 20--28 Colborne Road with the plaintiff for sale. Prior to March 23, 1959, the plaintiff and two other brokers, Segel and Poock, produced one Kahn as buyer. On that date Lishner and Kahn entered into a purchase and sale agreement, which provided that a commission of $5,000 was to be paid by Lishner to the plaintiff and the other two brokers 'if and when papers are actually passed.' Also on March 23 Lishner executed a second agreement to pay the plaintiff $2,000 as additional commission if and when papers should pass. The sale to Kahn did not go through, and a $2,000 deposit made by Kahn was kept by Lishner as liquidated damages as provided in the agreement. The plaintiff and the two cobrokers were entitled to no commission.
Poock then procured another purchaser, one Bernstein, and the plaintiff and Poock agreed with Lishner that their commission as cobrokers would be $5,000. No new written agreement concerning the extra $2,000 commission was made. On May 18, 1959, a formal purchase and sale agreement was executed, and on June 1 1959, title passed. On that date in the office of Lishner's lawyer, Poock and the plaintiff received their commission checks and executed broad releases of all claims against Lishner. At that time Lishner said to the plaintiff, 'I am not giving it (the $2,000) to you now but I will give it to you later.' 'You'll get your two thousand dollars * * *.' On later occasions Lishner repeated these statements. After Lishner's death a claim was filed against his estate for the $2,000.
The defendants excepted to the denial of their fifth request, which asked a ruling that the evidence does not warrant a finding for the plaintiff on count 2.
The plaintiff is suing for a commission in the face of a writing expressly releasing it. He, therefore, must avoid the effect of the parol evidence rule. See Sherman v. Koufman, 349 Mass. 606, 610--611, 211 N.E.2d 220; Schuster v. Baskin, Mass., 236 N.E.2d 205. a As was said in Cohen v. Santoianni, 330 Mass. 187, 193, 112 N.E.2d 267, 271, 'The general rule is that, in the absence of fraud, one who signs a written agreement...
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Greene v. Ablon
...of fraud, one who signs a written agreement is bound by its terms whether he reads and understands it or not.” Spritz v. Lishner, 355 Mass. 162, 243 N.E.2d 163, 164 (1969) (quoting Cohen v. Santoianni, 330 Mass. 187, 112 N.E.2d 267, 271 (1953) ); see St. Fleur v. WPI Cable Sys./Mutron, 450 ......
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Henning v. Mortgage
...he has read and understood it or not. See Willens v. Univ. of Mass., 570 F.2d 403, 405 (1st Cir.1978) (citing Spritz v. Lishner, 355 Mass. 162, 164, 243 N.E.2d 163 (1969)). At the motion to dismiss stage this Court may take notice of public documents, such as the mortgage and note here, whi......
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Smith v. Jenkins
...ordinarily be held to its terms whether or not he or she reads it or claims to have not understood its provisions. Spritz v. Lishner, 355 Mass. 162, 164, 243 N.E.2d 163 (1969). Here, however, where Smith has pled a lack of mental capacity that should have been obvious to his interlocutors, ......
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Cunningham v. Brown
...omitted.)Veazey v. Durham, 231 N.C. 357, 361-362, 57 S.E.2d 377, 381 (1950) (opinion by Justice Ervin).2 Compare Spritz v. Lishner, 355 Mass. 162, 243 N.E.2d 163 (1969) and Canney v. New England Tel. & Tel. Co., 353 Mass. 158, 228 N.E.2d 723 (1967) with Craig v. Kessing, 297 N.C. 32, 253 S.......