O'Neill v. Reardon

Crosby, J.

This is an action brought by a broker to recover a commission for procuring a tenant to lease a portion of a building at 1126 Boylston Street in Boston. There was a verdict for the plaintiff and the case is before us on the defendant’s exceptions.

There was evidence that the defendant was the real owner of the premises, title to which stood in the name of his half sister, Mary A. Tobin, who so held title because of his financial condition; that at the time the plaintiff was employed by the defendant to procure a tenant, he did not know that the defendant was not the owner, and did not learn that fact until after he had procured the Boston Nurses’ Club as a tenant. If, as the jury could have found, the defendant told the plaintiff that he was the owner of the premises, and the plaintiff, believing the statement so made to be true, found one who was willing to lease on terms satisfactory to the defendant, his commission was earned even if the defendant did not own the property. Monk v. Parker, 180 Mass. 246 .

There was evidence that the club intended to occupy the premises as a home for nurses, that many changes in the building would be required, and that an architect was employed who prepared plans showing the alterations to be made. Afterwards, an agreement for a lease was signed by Mary A. Tobin and the Boston Nurses’ Club, which provided for many alterations, and which the plaintiff contends contained all the terms of the proposed lease. After the trial, and after the bill of exceptions had been allowed, the parties by their counsel entered into a stipulation, which was filed in court, as follows: “It is hereby stipu *124 Iated and agreed that the plans and blue-prints are too bulky to be printed. It is hereby further stipulated and agreed that when the agreement for a lease was executed, it contained everything that was in the minds of the parties. There was nothing left to be further agreed upon. That the only reason that the lease was not consummated was because the Building Department of the City of Boston required changes in the premises different than those called for by the agreement by the parties.” It is the contention of the defendant that the agreement does not contain all the terms of the lease to be entered into, and therefore that no contract for a lease was made which was acceptable to him, and that a tenant was not procured who was able, ready and willing to lease the property upon terms acceptable to the owner. There is no evidence that the stipulation was entered into by reason of any fraud or mistake practised upon the defendant or owner, accordingly there seems to be no valid reason why it should not be held to be binding upon the parties. But, wholly apart from the stipulation, there was evidence which warranted a finding that in fact the agreement contained all the terms of the lease which was thereafter to be executed. The defendant testified “That the agreement to make a lease signed by both parties was satisfactory to both parties.” It was a question of fact for the jury. The circumstance, that the parties failed to carry out the agreement by executing a lease in accordance with its terms, does not affect the right of the plaintiff to receive a commission. Fitzpatrick v. Gilson, 176 Mass. 477 . Taylor v. Schofield, 191 Mass. 1 . Willard v. Wright, 203 Mass. 406 . Leland v. Barber, 228 Mass. 144 . The defendant’s first request, that on all the evidence a verdict should be directed for the defendant, could not have been given; the case was properly submitted to the jury.

The third request, that if the defendant made a contract with the plaintiff it was without consideration, was rightly refused. The request “33A,” that if any promise was made by the defendant to the plaintiff it was a promise to answer for the debt of another and was within the statute of frauds, could not have been given; that statute has no application to the facts in the case at bar. There was ample evidence that the Boston Nurses’ Club by its authorized agent was able, ready and willing to become a tenant of the building, on terms acceptable to the owner; *125 accordingly the fourth and fifth requests could not have been given. There is no evidence which would warrant a finding that the plaintiff acted as agent for both parties in carrying out the terms of his employment by the defendant; therefore, the sixth request was rightly refused. If, after the alterations agreed upon had been made, the premises could not legally be occupied by the proposed tenant because contrary to St. 1907, c. 550, still the plaintiff’s right to recover a commission was not thereby affected; it follows that requests seven and eight were properly refused. The exceptions to the exclusion of the testimony of the witness Goode cannot be sustained, as it all related to matters which were plainly irrelevant and immaterial.

Exceptions overruled.