Stuart v. Clark

• Decision Date: 21 May 1927
• Parties: STUART v. CLARK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 383

156 N.E. 739

STUART

v.CLARK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1927

Exceptions from Superior Court, Suffolk County; Stanley E. Qua, Judge.

Action of contract by Charles S. Stuart against Nelson B. Clark and trustees. Verdict for plaintiff, and defendants except. Exceptions overruled.

James M. Graham, of Boston, for plaintiff.

Simon Cohen, of Boston, for defendants.

WAIT, J.

This is an action by a broker to recover a commission upon a sale of a business. After verdict for the plaintiff, the defendant presents his bill of exceptions, and contends that there was error (1) in the allowance of an amendment; (2) in the denial of his motion for the direction of a verdict in his favor; and (3) in the refusal to instruct the jury in accord with certain requests.

There is no substantial dispute in regard to the following facts: About March 13, 1924, the defendant consulted with the plaintiff and his son, who was his agent or employee, about the sale of a business at Beverly. On March 28 he wrote the plaintiff, stating that he gave the Columbia Real Estate Company, which was the name under which the plaintiff did business, for the term of 60 days from that date, exclusive agency for the sale of the business, intending not to offer it for sale through any other broker during that period, but expressly reserving the right to sell without liability for commission through his own efforts. ‘The selling price is to be $10,000, and your commission will be 10 per cent. of said price, so that in any event, the sale of the business will net me $9,000. * * * It is understood, of course, that you are entitled to the commission hereinbefore stated, only when and if a sale is consummated by you in accordance with my terms.’ He inclosed check for $40 to be used in advertising. The plaintiff advertised and within a day thereafter was addressed by one Fowler in regard to a purchase. This was Fowler's first knowledge of the chance to purchase. Fowler examined the property and talked with the plaintiff's son and with the defendant, but thought the price too high and took up with the plaintiff possible purchases of other properties. No sale was arranged and no commission was earned before May 28, the expiration of the 60 days. In June, the defendant communicated with Fowler, lowered his price, and, after negotiations, agreed on a sale at $6,000, which was settled upon about June 24 and consummated on July 7. The property was owned by the defendant's brother and transfer was made by the brother, who was made payee of a note for $3,000, and grantee of a mortgage to secure the note given by Fowler for part of the purchase price.

On controverted evidence, the jury could have found that the advertisement and Fowler's introduction to the property took place before March 28; that in June, and before communicating with Fowler, the defendant spoke with the plaintiff, told him of a possible reduction in the price, and asked him to get at Fowler and urge his renewed consideration of the matter; that the plaintiff spoke with Fowler, and, in consequence, the latter entered upon the final negotiations which culminated in the sale.

[1] 1. The first count of the declaration, filed October 6, 1924, in the action begun August 21, 1924, alleged that on or about March 12 the defendant requested the plaintiff to find a customer and agreed to pay a commission of 10 per cent., that he found Fowler, who purchased and paid defendant $6,500, that 10 per cent. was a fair commission, and the defendant, therefore, owed $650.

Obviously the proof failed to correspond. The contract, if made March 13, was different. It was open only until May 28, and payment was due only when and if a purchaser at $10,000, was secured. At the close of the evidence the plaintiff was allowed to amend by changing the date alleged from March 13 to June 25. The allegations of the amended count could be found to be true. Nothing appears to indicate that the defendant was misled or prejudiced in his defense. Under the statutes permitting amendment (G. L. c. 231, §§ 51, 138) it was for the judge to determine whether the cause of action remained the cause for which the suit was intended to be brought....