Whitcomb v. Bacon

• Decision Date: 07 March 1898
• Citation: 49 N.E. 742,170 Mass. 479
• Parties: WHITCOMB et al. v. BACON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 479

49 N.E. 742

WHITCOMB et al. v. BACON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1898

COUNSEL

S.L. Whipple and W.R. Sears, for plaintiffs.

Gaston & Snow, for defendant.

OPINION

ALLEN J.

It has been held by us in two recent cases that a broker who does not have the exclusive sale of real estate does not become entitled to a commission merely by bringing the property to the attention of the person who finally buys it, but he must also show that his services were the efficient or effective means of bringing about the actual sale. Dowling v Morrill, 165 Mass. 491, 43 N.E. 295; Crowninshield v. Foster, 169 Mass. 237, 47 N.E. 879. Where two or more brokers are employed, there is no implied contract to pay more than one commission, and it therefore becomes necessary to lay down a rule for determining which one of different possible claimants is entitled to be paid. A similar rule exists in the law of insurance, stated thus in 1 Phil.Ins. § 1132: "In case of the concurrence of different causes to one of which it is necessary to attribute the loss, it is to be attributed to the efficient predominating peril whether it is or is not in activity at the consummation of the disaster." And again, in section 1137: "If where different parties, whether the assured and the underwriter, or different underwriters, are responsible for different causes of loss, which concur in the loss, and the damage by each cause cannot be distinguished, the party responsible for the predominating efficient cause, or that by which the operation of the other is directly occasioned, as being merely incidental to it, is liable to bear the loss." This latter rule is expressly accepted as correct in Insurance Co. v. Transportation Co., 12 Wall. 194, 199, the court saying: "When there are two concurrent causes of a loss, the predominating efficient one must be regarded as the proximate, when the damage done by each cannot be distinguished." In determining what constitutes proximate cause, the same considerations apply equally in actions of contract and of tort. New York & B.D. Exp. Co. v. Traders & M. Ins. Co., 132 Mass. 377. It may be that there are different causes which assist in producing a result, and that the result would not have happened if either one of the different causes had been wanting. A familiar example is found in cases where there has been a delay by a carrier in transporting goods, which are afterwards destroyed by flood or fire. Hoadley v. Transportation Co., 115 Mass. 304; Denny v. Railroad Co., 13 Gray, 481; Railroad Co. v. Reeves, 10 Wall. 176. So, where several brokers have each endeavored to bring about a sale which finally is consummated, it may happen that each has contributed something without which the result would not have been reached. One may have found the customer, who otherwise would not have been found, and yet the customer may refuse to conclude the bargain through his agency, and another broker may succeed where the first has failed. In such a case, in the absence of any express contract,...