Newhall v. Pierce , 115 Mass. 457 ( 1874 )

Devens, J.

There had been between the parties to this cause a conversation in which the plaintiffs, who had been employed by the defendant to sell a house for him, had stated that they had no claim for their services (the actuál sale having been made by the defendant himself) ; and the plaintiffs had received from the defendant a small sum for their trouble. The instruction upon this part of the case was in substance that if at the time of this settlement, as it was called by the parties, the defendant did not inform the plaintiffs of the name of the person to whom he had sold his house, the plaintiffs would not be bound thereby. The instruction was erroneous in this, that it decided as a question of law that which was properly matter of fact for the jury. Assuming that the transaction between the parties had been a settlement, as both appear to have regarded it, under proper instructions, it was for the jury to say whether the failure of the defendant to inform the plaintiffs of the name of the party to whom he had sold the house, considering all the circumstances under which it occurred, was such a concealment of a material fact by the defendant, as would entitle the plaintiffs to avoid the settlement as one into which they had been entrapped by him. Exceptions sustained.