Talbot-Windsor Corp. v. MILLER, III, 6009.
| Decision Date | 23 October 1962 |
| Docket Number | No. 6009.,6009. |
| Citation | 309 F.2d 68 |
| Parties | TALBOT-WINDSOR CORP., Plaintiff, Appellant, v. William A. C. MILLER, III, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Mark M. Horblit, Boston, Mass., with whom Samuel H. Kalish, Boston, Mass., was on brief, for appellant.
Stuart Macmillan, Boston, Mass., with whom Raymond F. Burke and Hausserman, Davison & Shattuck, Boston, Mass., were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
This is an appeal by the plaintiff following a jury verdict for the defendant. In its complaint, filed in the Massachusetts state court and removed, the plaintiff alleged that it was a real estate broker; that the defendant engaged it "to find a customer" at a specified price for a certain property owned by him in Massachusetts; that plaintiff did find a "customer who informed the plaintiff in behalf of his corporation that it was ready, able and willing to purchase said property," but that defendant did not so convey the property or pay plaintiff its commission. The pleader's looseness as to the identity of the "customer" permeates this appeal. The evidence most favorable to the plaintiff shows, at best, that plaintiff persuaded the president of a corporation to say that the corporation would purchase the property; that the president was authorized to look for property, and to recommend, but not to contract; that authority to purchase was in a board of fifteen trustees; that no more than four trustees even knew of this property, and that a majority of the board, either formally or informally, never authorized or ratified the president's alleged agreement. It is thus clear that plaintiff's "customer" was the corporation, and that the only undertaking approaching an agreement was by an officer who was not authorized to bind it.
The plaintiff's otherwise detailed brief omits mention of the fact that defendant's obligation was based upon "any offer that is accepted." Assuming that an oral, and therefore not binding, acceptance may be enough, cf. Walker v. Russell, 1922, 240 Mass. 386, 391, 134 N.E. 388; Leland v. Barber, 1917, 228 Mass. 144, 117 N.E. 33; but cf. MacDonald v. Mihalopoulos, 1958, 337 Mass. 260, 149 N.E.2d 138, it must in any event be unconditional and unqualified. Chapin v. Ruby, 1947, 321 Mass. 512, 74 N.E.2d 12; Doten v. Chase, 1921, 237 Mass. 218, 129 N.E. 363. The expression of willingness by an unauthorized agent, never...
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...jury rather than granting a motion for judgment as a matter of law "is often a wise and time-saving precaution." Talbot-Windsor Corp. v. Miller, 309 F.2d 68, 69 (1st Cir.1962). See also 9A Wright & Miller, Federal Practice and Procedure: Civil 2d § 2533, p. 319 (1995) ("appellate courts rep......
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