Pearson v. Mason , 120 Mass. 53 ( 1876 )

Ames, J.

We see no ground upon which these exceptions can be sustained. Upon the first and third counts of the declaration, the evidence was conflicting as to the question whether the defendant’s contract to take back and pay for the stock in the Haverhill Lime Company was made by him personally and on his own account, or whether in making it he was acting, and was known by the plaintiff to be acting, merely as the agent of another person. This was purely a question of fact, and was submitted to the jury with instructions to which we see no valid objection. The presiding judge did not adopt the defendant’s language, but the instruction given included all that was suggested in his request.

With regard to the ruling given in answer to the second prayer for instructions, it was strictly correct, and in conformity to the decision of this court in Thorndike v. Locke, 98 Mass. 340, and the earlier case of Thompson v. Alger, 12 Met. 428. The stock had properly been tendered to the defendant before suit brought, and the tender was renewed at the trial.

In the defendant’s third prayer for instructions, the general' rule as to a broker’s right to charge commissions may have been correctly stated, but the plaintiff’s claim rested upon an alleged special contract upon the subject of his compensation,. and the jury were correctly instructed that, if such contract were proved, he was entitled to the commission as agreed.

Exceptions overruled.