Wheelock v. Zevitas

• Decision Date: 07 January 1918
• Citation: 118 N.E. 279,229 Mass. 167
• Parties: WHEELOCK v. ZEVITAS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 167

118 N.E. 279

WHEELOCK

v.ZEVITAS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1918.

Exceptions from Superior Court Suffolk County; Frederic H. Chase, Judge.

Action by Merton H. Wheelock against Constantenos Zevitas and others, trustees, in two counts, the first on the account annexed, and the second on quantum meruit, to recover for services in obtaining a lease of a building in Boston; defendants contending that one William B. Fischel was a copartner with plaintiff, and that plaintiff could not recover unless Fischel was joined as a party plaintiff. There was verdict for plaintiff for $2,370.21, and defendants except. Exceptions overruled.

Jas. M. Hoy, of Boston, for plaintiff.

John H. Casey and Frederic J. Muldoon, both of Boston, for defendants.

CARROLL, J.

The plaintiff seeks to recover for services performed in obtaining a lease of a certain building for the defend ants and in securing tenants for the same. The declaration is in two counts, the first is on the account annexed and the second upon a quantum meruit. There was a verdict for the plaintiff.

The defendants requested the court to rule:

(1) ‘Upon all the evidence the plaintiff is not entitled to recover,’ (2) ‘the plaintiff is not entitled to recover upon any count of this declaration,’ and (3) ‘the plaintiff is not entitled to recover upon the quantum meruit count of his declaration.’

These requests for rulings were refused and the defendants excepted. In answer to a specific question the jury found that the plaintiff was not a partner of Fischel; and to the question ‘Was the payment of a commission to the plaintiff upon the Braus lease dependent upon a condition which had not been performed prior to July 31, 1914 (date of the writ)?’ they answered in the negative, and found for the plaintiff.

Braus was the lessee of the premises 33, 35, 37 Tremont Street, Boston, and the largest item in the account was for a commission in obtaining this lease for the defendants. The defendants contend that Fischel was a partner of the plaintiff.

To prevent the plaintiff's recovery because of the alleged partnership with Fischel, it was not enough to show that they held themselves out as partners and could be considered such by their creditors. It was necessary to show that they were partners between themselves and not merely partners as to third persons; that Fischel was in fact a partner of the plaintiff and entitled with him to bring the action. As stated by Chief Justice Shaw in Bishop v. Hall, 9 Gray, 430, 432:

‘It is not enough that parties held themselves out, or suffered themselves to be held out as partners. This might be sufficient to charge them as defendants, either in contract, or for negligence or want of skill; but the same proof, when the partnership was set up to prevent one from recovering, would wholly fail of establishing it.’

Whether they were in fact partners depended upon the agreement of the parties. McMurtrie v. Guiler, 183 Mass. 451, 67 N. E. 358. And as the evidence was conflicting, this question was properly submitted to the jury. Adamson v. Guild, 177 Mass. 331, 58 N. E. 1081.

There was some evidence that the plaintiff, acting as a real estate broker, contracted with the defendants to procure for them the Braus lease for a commission of $1,116.72, and two other leases to other tenants, one for a commission of $839.38 and one for a commission of $160; that these leases were obtained; that the plaintiff performed his part of the contract, and the defendants refused to...