Field v. Hamm

Rugg, C.J.

This is an action to recover a commission on the sale of real estate. The ’plaintiff was “manager of a furniture concern.” He was acquainted with the defendant and lived on a street where the latter had a house for sale. The two talked about the property but no contract of employment then was made. The plaintiff, while being shaved, talked with his barber about the desirability of buying the defendant’s house. The barber said he would look at the house that night. The plaintiff thereafter saw the defendant and asked if he would pay the plaintiff “a commission if he should find a buyer, and the defendant replied that he certainly would.” The plaintiff then told the defendant of his conversation and disclosed the name of the prospective buyer and the fact that he was coming out that evening to *270 see the house. The barber and his wife came that evening to the house of the plaintiff and, not finding him, went on to the defendant’s house and examined it and talked with him about buying. Next morning the defendant told the plaintiff of their visit and his negotiations and asked, “if I lower the price . . . what is the very best that you will take for commission?” and the plaintiff answered, “$400.” The defendant inquired, “That will be perfectly satisfactory, will it?” and the plaintiff replied in the affirmative. The defendant said, “all right, I will work on that basis.” The house was subsequently sold by the defendant to the wife of the barber. The plaintiff did not see the barber or his wife from the time of his talk while being shaved until after the transfer of the property.

At the conclusion of the testimony the judge, without any motion therefor being made by the defendant, directed a verdict in his favor.

As matter of substantive law the ruling was right. The contract alleged and proved was that the defendant promised to pay a commission to the plaintiff if the plaintiff should find a buyer for the property. The plaintiff did nothing pursuant to that promise. He did not thereafter find a buyer. All that he did toward finding a buyer confessedly was performed before the promise of the defendant. The past performance of services constitutes no consideration for an express promise, unless performed at the express or implied request of the defendant.' Dearborn v. Bowman, 3 Met. 155, 158 . Chamberlin v. Whitford, 102 Mass. 448, 450 . Massachusetts Mutual Life Ins. Co. v. Green, 185 Mass. 306, 308 . Conant v. Evans, 202 Mass. 34 . Williams v. Sneirson, 225 Mass. 199 . Alexander v. Dove, 231 Mass. 362, 366 . McCarthy v. Simon, 247 Mass. 514, 522 . Mabee v. Hersum, 248 Mass. 188 . Plainly there was no such request by the defendant before the plaintiff did his work.

Neither the allegation nor the proof was to the effect that the promise was to pay the commission provided the plaintiff would give to the defendant the name of a person with whom he had already talked. That matter was not raised at the trial and need not be considered.

*271 There is nothing in the argument that the offer of the plaintiff, to take a less commission if the defendant was obliged to take a lower price in order to make the sale, was the compromise of a disputed claim. There was at that time no claim, no dispute, nor any compromise.

As matter of practice the judge was right in ordering a verdict in the absence of a request therefor. His powers are not constricted by Common Law Rule 44 of the Superior Court (1923) to the effect that the question whether the court should order a verdict must be raised by motion in writing. That rule merely points out what steps a party must take to raise the question of law. The wise and impartial judge who discharges the duties of his office is the directing spirit, controlling mind and dominating force at the trial, and acts to the end that a just result be reached. Whitney v. Wellesley & Boston Street Railway, 197 Mass. 495, 502 . Posell v. Herscovitz, 237 Mass. 513, 515 . O’Neill v. Ross, 250 Mass. 92, 97 , and cases there collected. He is authorized and ought to order a verdict if clearly convinced that the law requires that course, even though no motion is made.

Exceptions overruled.