Zilli v. Rome

• Decision Date: 03 March 1922
• Citation: 134 N.E. 622,240 Mass. 368
• Parties: ZILLI v. ROME et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 368

134 N.E. 622

ZILLI

v.ROME et al.

Supreme Judicial Court of Massachusetts, Worcester.

March 3, 1922.

Exceptions from Superior Court, Worcester County; W. P. Hall, Judge.

Action by Guido Zilli against Abraham I. Rome and another for damages for an alleged breach of an agreement to convey real estate. Directed verdict for defendants, and plaintiff brings exceptions. Exceptions sustained.

Defendants pleaded a general denial and the statute of frauds. The only written memorandum was signed in the name of a realty company, which the defendant Abraham I. Rome had authorized to procure a purchaser, and was as follows:

Fitchburg, Mass., March 12, 1920.

Received from Guido Zilli, of Fitchburg, $150.00 dollars, as part payment and to bind the bargain for the land with all buildings thereon, located on Fairmount, Clarendon and Plymouth streets in Fitchburg, and measuring 55 feet on Fairmount St., 200 feet on Clarendon St., and 105 1/2 feet on Plymouth street, containing 16,053 sq. feet of land, assessed value of land and buildings $14,050.00, and being the real estate owned by A. I. Rome and Philip Rome (brothers). Price of property $14,700.00 cash. A good and sufficient deed to be delivered free of all incumbrances on payment of balance of purchase price. Deeds to be passed as soon as possible and time is allowed to have deeds sent to South America to get signature. It is agreed to have Guido Zilli enter upon and take possession of this property on April 1, 1920, and collect rents and take control of this property. This property is being sold subject to the taxes assessed April 1, 1920. It is agreed that there be no leases on this property and understood that the tenants are tenants at will. Should we be unable to deliver this property as per the above, we reserve the right to pay back to Guido Zilli the money paid this day to bind the bargain.

[Signed] Shea Realty Co.,

By John J. Shea, Pres.Charles T. Flynn, of Fitchburg, for plaintiff.

James A. Stiles and A. Z. Goodfellow, both of Fitchburg, for defendants.

DE COURCY, J.

The plaintiff seeks in this action to recover damages for the breach of an agreement to convey a lot of land on Fairmount street in the city of Worcester. The trial judge excluded the written agreement of sale made by a broker, the Shea Realty Company, and directed a verdict for the defendants.

On the evidence presented the defendant Philip Rome would not be bound by this agreement, even if admitted. He was in South America; and the broker had not seen him or received any communication from him with reference to the sale of this land. Whatever authority Shea had came from the defendant Abraham I. Rome. While there was evidence tending to show that Abraham purported to be acting for his brother Philip, as well as for himself, and the jury could disbelieve the testimony of Abraham to the effect that he was not authorized to sell this parcel, nevertheless not enough was shown to bind Philip. There was no direct evidence that he authorized Abraham to act as his general agent to sell his real estate in Fitchburg. Nor did it appear that the declarations and conduct of Abraham, purporting to act as such agent, were brought home to Philip. The offer to show by the broker that he signed the agreement as agent for both defendants, was rightly excluded. His agency was denied, and could not be established by his own declarations. Ennis v. Wright, 217 Mass. 40, 104 N. E. 430. The earlier sale of a lot to one...