Johnstone v. Cochrane , 231 Mass. 472 ( 1919 )

Loeing, J.

This is an action to recover a commission for the sale of the property (with an exception which need not be stated) of the Danielsonville Cotton Company. The defendants were John, Pauline and- J. Eugene Cochrane. It appeared at the trial that John died after this action was brought. On the evidence introduced at the trial the presiding judge directed the jury to return a verdict for the other two defendants and the case is here on an exception to that ruling and upon an exception to the admission of certain evidence introduced against the objection of the defendants.

We do not find it necessary to pass upon the question of evidence, for we are of opinion that, laying that evidence on one side, the jury were warranted in finding for the plaintiff as against the defendant Eugene. At another trial it is not likely that the evidence admitted under the defendants’ excéption will be presented in the same form.

There was a great deal of confusion in the evidence on many of the details of the transaction here in question. We do not find it necessary to go into or state these details at length. The jury were warranted in finding the following to be the facts of the case: The plaintiff was the agent in charge of the Danielsonville Cotton Company situate at Danielson in Connecticut. The original defendants were the owners of all- the corporate stock of that company. In April, 1911, the defendant Eugene asked the plaintiff to find a purchaser for the property and agreed to pay him the usual broker’s commission if he was successful in so doing. A year later the plaintiff brought the property to the attention of Frank Bulkeley Smith. Smith came to Danielson and made a thorough inspection of it. At the conclusion of his inspection he asked the plaintiff to put him in communication with his (the plaintiff’s) principal. Thereupon the plaintiff arranged for a meeting between Smith and Eugene. This meeting took place at the Worcester Club on the evening of the day on which the request was made, namely, April>2, 1912. Negotiations for the sale of the property were begun between Eugene and Smith at that meeting. Later on Smith introduced Eugene to his principals ICidder, Peabody and Company, and the negotiations begun between Eugene and Smith were carried on between Eugene, Smith and Kidder, Peabody and Company until the latter part of May or the early part of June when Kidder, Peabody and Company agreed to buy the property for $250,000, $160,000 to be paid in cash and $90,000 to be paid in the second preferred stock of the Danielson Cotton Company of Massachusetts, a corporation organized by Kidder, Peabody and Company to take title to and operate the mill. The conveyance to the new corporation was made on June 26, 1912. The $160,000 in cash was paid to the old corporation by Kidder, Peabody and Company, and the old corporation paid it to Marshall Field and Company in payment of its debt to that firm; the $90,000 second preferred stock was distributed to and among Pauline, Eugene and the personal representatives of John Cochrane as the owners of the stock of the old corporation.

The defendants’ first contention is that by the terms of the plaintiff’s employment by Eugene the plaintiff was to be paid a commission only if he procured a sale for $250,000 in cash, and the sale which was made was for $160,000 in cash and $90,000 in the second preferred stock. There is nothing in the evidence which even gives color to this contention. The evidence showed that Eugene employed the plaintiff to find a purchaser for the property and agreed at the time to pay him the usual commission. At that time he told the plaintiff that he intended to ask $300,000 for the property and the plaintiff told him that that price would be prohibitive. Thereupon Eugene asked the plaintiff what he thought the property could be sold for and the plaintiff told him “Possibly $250,000 would be the maximum that could be got for the property.” Later on, while the negotiations with Smith were going forward, Eugene suggested to the plaintiff that the price should be changed to $200,000 and.the plaintiff then told Eugene that if the property could be sold for .$200,000 it could be sold for $250,000. The defendants’ main contention in this regard is founded upon an answer of the plaintiff made during his cross-examination. But in quoting the answer the defendants’ counsel has omitted the last seven words. The record states that on cross-examination the plaintiff testified: “The plaintiff always held it and offered it at $250,000 knd understood it was to be $250,000 cash, 'the best we could get for it.’” Even without the last seven words there is nothing in this testimony which supports the defendants’ contention and the last seven words negative it.

The defendants’ second contention is founded upon a statement made by Eugene in his direct examination. In his direct examination Eugene testified that he “saw Mr. Winsor [of Iiidder, Peabody and CompanyJ at his hpuse about six weeks after the Union Club conference. There had been a complete break in the negotiations; they started all over again. He saw Mr. Smith again at Kidder Peabody’s about the first of June.” The “Union Club conference” was a meeting between Smith and ..Eugene at the Union Club in Boston about two weeks after the first meeting at the Worcester Club on the evening of April 2. In the first place the jury were not bound to believe this testimony. Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314. In the second place it was directly contradicted by Eugene himself in another part of his testimony. After stating that he met Smith at the Worcester Club on April 2, 1912, Eugene testified that: “From that time.on he had the negotiations for the sale of the plant personally with Mr. Smith and the interests that he represented who finally purchased.” Apart from this testimony of Eugene it is apparent from the details of Smith’s visits to the plant and the conferences that took place which are set forth in detail in the testimony but which we have not found it necessary to refer to at length, that the jury were warranted in finding that the last statement of Eugene set forth above was the fact. Under these circumstances it is not necessary to consider what the result would have been as matter of law had it been the fact that there had been “a complete break in the negotiations.”

The defendants’ next contention is that, if there was any contract with the plaintiff, it was a corporate one made between the plaintiff and the old corporation the Danielsonville Cotton Company. The fact that 'the property to be sold was owned by the corporation and not by Eugene does not of necessity make the employment of the plaintiff to procure a sale of the property an employment by the corporation. A person who does not own property may, if he chooses, employ a broker to get a purchaser for it. The fact that he does not own the property is a circumstance bearing upon the question whether he did in fact employ the broker to find a purchaser for the property. But this is the only bearing which that fact'has. The matter was discussed at length in Monk v. Parker, 180 Mass. 246, and what was said there need not be repeated here. It appeared in the evidence at the trial that the former corporatioú • (the capital stock of which was owned by Eugene, his sister and his father) had become indebted in a large amount to Marshall Field and Company, and that the occasion of Eugene employing the plaintiff to find a purchaser for the property was because Marshall Field and Company were pressing for the payment of this debt. In the end the whole of the $160,000 paid in cash by Kidder, Peabody and Company, had to be and was applied by the old corporation in the payment of this debt to Marshall Field and Company. Under these circumstances there was nothing significant much less conclusive in the fact that the property for which Eugene asked the plaintiff to find a purchaser was owned by the corporation and not by him. The defendants have urged in this connection that the paper on which Eugene wrote to the plaintiff when he did write him, was corporate paper. It was corporate paper. But it was not the corporate paper of the Danielsonville Cotton Company. It was the corporate paper of the Cochrane Manufacturing Company, another corporation which it appeared in evidence was owned by the same persons who owned the Danielsonville Cotton Company. ' And it is the fact that every letter written to the plaintiff was signed by Eugene personally and never as an officer of either corporation.

The last fact relied upon by the defendants in this action is that on cross-examination the plaintiff was asked this question, "You were instructed by Mr. Cochrane, in his capacity of treasurer and manager of this Danielsonville Cotton Company, to show the plant to anybody who came down there to see it, after' you first learned from any source that they were going to run the plant’s stock out, close it up and sell it?” and that the plaintiff answered, “No I didn’t have such instructions. I had 'instructions to show Mr. Nicholson, and he was to send his customers with a card of identification so as to know it was his customer and not a customer of some other broker.” The defendants’ contention based upon this question and answer is that, "the failure of the plaintiff as indicated above to repudiate the notion that he was dealing with Mr. J. Eugene Cochrane in his official capacity shpws pretty strongly that what we are contending for is true.” There is nothing in this suggestion.

It is settled by many decisions (and among them Desmond v. Stebbins, 140 Mass. 339, and Willard v. Wright, 203 Mass. 406) that a broker earns a commission where he brings the property which he is employed to sell to the attention of a third person and then turns that person over to his employer and the property is sold as the result of negotiations so begun between the two.

We are of opinion that the plaintiff made out a case against the defendant J. Eugene Cochrane.

We are however of opinion that the plaintiff did not make out a case against the defendant Pauline Cochrane, the other defendant left after the action had abated as against John Cochrane by his death. There was no evidence that Pauline authorized Eugene to employ the plaintiff as a broker in her behalf. Nor was there any evidence that Eugene undertook to employ him in behalf of Pauline. The fact that she derived benefit under Eugene’s employment of the plaintiff does not make her liable. So far as the defendant Pauline is concerned the ruling directing a verdict for the defendants was right.

The defendant Eugene Cochrane has insisted that the ruling directing a verdict for him was right, even if he would have been liable had he been the sole defendant. This contention is based on the ground that the action here in question was brought against Pauline and him jointly and the case made out in the evidence was a case against him alone. He relies in this contention upon Tuttle v. Cooper, 10 Pick. 281. But soon after the decision of this court in that case “the Legislature passed a statute, which, with occasional modifications, has since continued in force, authorizing the plaintiff in an action of contract against two or more defendants, to take judgment against those, though less than all sued, who should appear upon the trial to be liable.” That statute is now R. L. c. 177, § 6. The cases of Leonard v. Robbins, 13 Allen, 217, Monk v. Parker, 180 Mass. 246, are cases where this statute was applied.

The result is that the exceptions to the ruling must be overruled so far as the defendant Pauline Cochrane is concerned and sustained so far as 'the defendant J. Eugene Cochrane is concerned.

So ordered.