Viaux v. Old South Society in Boston

• Decision Date: 13 May 1882
• Citation: 133 Mass. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Frederick H. Viaux & another v. Old South Society in Boston

133 Mass. 1

Frederick H. Viaux & another v. Old South Society in Boston

Supreme Court of Massachusetts

May 13, 1882

Argued March 17, 1881 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Contract, by real-estate brokers doing business in Boston, to recover a commission on $ 400,000, the price received by the defendant, a religious corporation, for the land and meeting-house thereon, formerly owned by it, at the corner of Milk Street and Washington Street in Boston. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions, in substance as follows:

There was evidence that the plaintiffs were employed as brokers by the defendant to effect a sale of said property; that they were the first to call the attention of Royal M. Pulsifer to the property, and introduced him to the defendant as a customer; and that thereupon the plaintiffs had many interviews and some correspondence with Pulsifer and the defendant, and informed Pulsifer of the value, rental capacity and advantages of the property, and endeavored to induce him to make the purchase. By the terms of sale given to the plaintiffs by the defendant, the buildings were to be removed and the land sold.

The following deeds, all dated October 11, 1876, were put in evidence:

1. A deed from the defendant to Royal M. Pulsifer of the land, describing it by metes and bounds, by the terms of which the grantee was to pay the taxes of that year, the grantor reserving the right to enter upon the premises and to take down the church edifice thereon, in case of any breach of the indenture immediately following.

2. An indenture between the same parties, whereby the defendant conveyed to Pulsifer the meeting-house on the land conveyed by the deed, on the "express condition that said building shall not at any time during the period of thirty years from the date of this indenture be used for any business or commercial purpose, and shall be used during said period for historical and memorial purposes only, and that it shall not at any time during said period be used for any purpose whatever on Sunday, except so far as necessary for the care and preservation of said building and contents."

3. A mortgage deed, of the entire estate, from Pulsifer to the New England Mutual Life Insurance Company, to secure the payment of Pulsifer's promissory note in the sum of $ 225,000, payable in three years from date, with interest at the rate of six per cent per annum, payable semiannually. The deed contained covenants of seisin and warranty, an agreement by Pulsifer to pay all taxes and assessments levied on the estate, and the usual power of sale.

4. A conveyance in mortgage, subject to the above mortgage, from Pulsifer to Henry Lee, trustee, the condition of which was the payment of $ 75,000, without interest, in two years, if the estate, subject to the prior mortgage, should "be sufficient therefor, but not otherwise."

5. A declaration of trust by Pulsifer, which, after reciting the foregoing deeds, proceeded as follows: "I do hereby declare, that I hold said land and building subject to said mortgages in trust: To permit Henry P. Kidder and Henry Lee, both of Boston, in the county of Suffolk and Commonwealth of Massachusetts, and the survivor of them and their or his assigns, to occupy and use said estate and building for such purposes as he or they may elect or direct in writing, consistently with the terms of the conveyance of said estate and building to me, during such time as they or their assigns shall pay the interest upon said first-named mortgage debt and taxes, and that I will on the payment of said mortgage debt, or upon my being indemnified to my satisfaction against loss by reason of my having incurred said mortgage debt, convey said property to said Kidder and Lee, the survivor of them and his or their assigns, or to such person or persons or corporation as they or the survivor of them or their assigns may designate in writing, by a quitclaim deed, with covenants against incumbrances made or suffered by me except as aforesaid, and with release of dower. If the principal amount of said first-named mortgage debt is not paid on or before maturity, according to the terms of said mortgage, or if I am not indemnified and saved harmless therefrom to my satisfaction as aforesaid, on or before its maturity, or if the interest due thereupon shall at any time be in arrears for more than the period of five months, I reserve the right to sell such mortgaged estate and property at my discretion at public auction, after advertising said sale for at least thirty days in two newspapers published in said Boston; and in case of such sale, after applying so much of the proceeds thereof as shall be necessary to pay said mortgage debt, or so much thereof as shall then remain unpaid, with interest, together with all the needful and proper costs and expenses of such sale, to pay over the balance of such proceeds to said Kidder and Lee, or the survivor of them or his or their assigns."

It was proved that there exists in Boston a general and well-established usage that a broker, whose services are accepted by the seller, and who introduces the seller to an ultimate purchaser, is entitled to a commission upon the amount for which the estate is sold, if ultimately purchased by the person so introduced, whether the sale is finally effected by the same broker, or by another person.

It was also in evidence that, in June 1876, the defendant informed the plaintiff, Viaux, that it was decided that the estate should be sold by public auction; that Viaux repeated this to Pulsifer, and Pulsifer then said to him that, if the estate was going to be sold by auction, he would prefer to take his chances at the auction rather than buy at private sale, and Viaux had no further communication with Pulsifer until after the deed was made to him; that on June 13, 1876, the building was sold by public auction to one Roberts, on condition that the same should be removed in thirty days; that subsequently Roberts assigned his interest to other parties, who reassigned to the defendant, before the indenture of October 11, 1876, was executed; and that the land was never sold by auction.

The defendant offered evidence tending to show that, immediately after the sale to Roberts, at a public meeting held in the meeting-house, a committee was appointed for the purpose of raising funds to preserve the building for an historical monument, and, after various negotiations with the defendant and delays, Henry Lee was appointed treasurer of the preservation committee, and he thereupon employed Charles U. Cotting to negotiate for the purchase of the land and building for an historical monument, in the course of which certain letters were written by Cotting, as agent, to the chairman of the standing committee of the defendant, which resulted in the defendant offering, on September 15, 1876, to sell the estate, on certain terms and conditions, which offer was accepted on September 19, 1876; that at the time of Cotting's first letter, August 23, 1876, the committee had, or were promised, $ 175,000 towards the price demanded for the property; and that after the refusal, on August 24, 1876, of the defendant to sell except for cash, they applied, through Cotting, to the New England Mutual Life Insurance Company, for a loan of $ 225,000, and the company agreed to lend this amount on the note of some person satisfactory to it, secured by a first mortgage of the property; that, at the request of Robert R. Bishop, who was acting with Lee on behalf of the committee, Pulsifer agreed to sign said note, and the company accepted him as satisfactory; that, on the day of the date of the several deeds, representatives of the preservation committee and the defendant met Pulsifer at the office of the company, Pulsifer signed the mortgage note, the papers in evidence were executed by the several parties thereto, and the $ 225,000, lent by the company, added to the $ 175,000 from the preservation committee, were paid over, in the presence of all the parties, to the defendant, and that since the execution of the papers Pulsifer had had nothing to do with the management of the property, excepting in signing leases to tenants of certain parts of it; that all the arrangements for raising the money under the mortgage were made before Pulsifer was requested to act as he did; that Pulsifer, personally, had nothing to do with Cotting, or the contract for the sale of the property, except as stated; and that the property was ample security for an amount of $ 225,000, and the prospect of personal liability on the part of any signer of the mortgage note was remote.

The defendant contended that Cotting had acted as the agent of the preservation committee, which, therefore, had bargained for and purchased the property; and that Pulsifer was a trustee for the committee's benefit, and not the purchaser of the property.

The plaintiffs admitted that they had no connection with the preservation committee or Cotting, but introduced evidence tending to show that after the defendant had, on August 24 1876, refused to consider anything but a cash offer for the property, the preservation committee and Cotting had unsuccessfully applied to the Massachusetts Hospital Life...