Strout v. Lewis

• Decision Date: 04 March 1908
• Citation: 104 Me. 65,71 A. 137
• Parties: STROUT v. LEWIS.
• Court: Maine Supreme Court

71 A. 137

104 Me. 65

STROUT

v. LEWIS.

Supreme Judicial Court of Maine.

March 4, 1908.

(Official.)

On Motion from Supreme Judicial Court, Sagadahoc County.

Assumpsit by E. A. Strout against Margaret M. Lewis, administratrix. Plaintiff moves to have a verdict in his favor set aside. Verdict set aside.

Assumpsit to recover a broker's commission on the sale of real estate based upon a written contract. Plea, the general issue, with brief statement as follows:

"And, for a brief statement of equitable matter of defense to be used under the general issue pleaded, the said defendant says that on the 27th day of June, 1904, the date of the alleged written agreement, and prior thereto, the plaintiff, by one Hutchins, his agent, and the defendant, agreed between themselves that if the defendant should place the real estate in question in the plaintiff's hands for sale by him, the said defendant would pay to the said plaintiff the sum of $20, which was the sum agreed upon to cover the plaintiff's expense in cataloguing and advertising said estate; that said sum of $20 should be payable to the said plaintiff in any event, whether a sale was effected by him, and that there should be no other or further expense or charge to her, the said defendant, on any account or for any reason or purpose whatsoever; that upon these propositions the minds of the parties met and mutually agreed; that on said 27th day of June, 1904, the aforesaid agreement was intended to be reduced to writing, and that the said plaintiff's agent volunteered to so reduce it, and, in pursuance thereof, wrote in upon a printed form the written agreement which is herein declared on, and handed the same to the said defendant to be signed by her; that she then asked him what said paper was, and that he then and there represented to her that the same was merely a writing to show that the said real estate had actually been placed in the plaintiff's hands for sale, and also to provide for the payment of said $20 in accordance with their agreement, and that, relying upon said representations, the defendant then and there signed the same.

"And the defendant further says that in truth and fact the statement and representations of the plaintiff's agent as to the nature and contents of said paper were false and fraudulent; that the said instrument did not embody the terms of the actual agreement between the parties; that the misrepresentations of the plaintiff's agent were affirmative statements of fact, made with the purpose of inducing the defendant to sign said instrument, and that in reliance thereon she was, in fact, induced to and did sign the same; that said affirmative statements were false in fact and known to be so by said plaintiff's agent; that they were material representations and that the defendant ever has been and now is ready and willing, and now offers, to pay to the plaintiff the $20 due to him upon the original and only mutual agreement and contract between them."

Tried at the August term, 1907, of the Supreme Judicial Court, Sagadahoc county. Verdict for plaintiff for $20, with interest from May 22, 1906. The plaintiff then filed a motion to have the verdict set aside for the following reasons: (1) "Because it is against law and the charge of the justice." (2) "Because it is against evidence." (3) "Because it is manifestly against the weight of evidence in the case." (4) "Because the damages assessed are insufficient."

The case is stated in the opinion.

Note.—Although the title of this case would indicate that the action was against the defendant in a representative capacity, yet the writ, declaration, and proceedings show that the suit was against her individually, and not as an administratrix.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and KING, JJ.

Williamson & Burleigh, for plaintiff.

Staples & Glidden, for defendant.

CORNISH, J. This was an action of assumpsit to recover a broker's commission on the sale of real estate, based upon a written agreement dated June 27, 1904.

The defendant pleaded the general issue, together with an equitable brief statement, alleging fraud in the inception and execution of the written contract, and claiming that under the actual oral agreement, made between the parties she was to pay the plaintiff $20 when the farm was sold, to cover the expense of cataloguing and advertising, whether the sale was made through the plaintiff's efforts or her own, and that there was to be no further charge against her of any kind.

By agreement of counsel, the case was submitted to the jury upon these pleadings, they to pass upon the question...