Isenberg v. Rosenthal , 240 Mass. 108 ( 1921 )

Crosby, J.

This is an action to recover a broker’s commission for procuring a tenant of a building in Boston; the title to which stood in the name of the defendant.

The defendant testified that she never met the plaintiff or spoke to bim until the writ in this action was served upon her; that she signed a lease of the building to one Thomas on or about November 9, 1917. A copy of the lease produced by the plaintiff bearing her signature was identified by her.

The plaintiff testified that he was a real estate broker, that he "knew plaintiff and her husband . . . very well by sight . . . ; that one day, about three weeks before the lease was signed, he met them on the sidewalk near the building, and said to them: ‘I hear you want to sell or let your building;’ that he asked them if they would like to have bim get a tenant, and the defendant replied: ‘Yes, if my husband is willing.’ ”

There was evidence that the plaintiff introduced Thomas to' the defendant’s husband and took them to the office of an attorney who drew the lease. The defendant testified that no such conversation as testified to by the plaintiff ever took place and that she had no knowledge that he had anything to do with procuring Thomas as a tenant.

Upon this conflicting testimony it was the duty of the trial judge to find the facts. His finding is expressed in these words: “The court found that defendant employed plaintiff to procure a tenant.” The defendant contends that this is a general finding in favor of the plaintiff, and not a special finding that the defendant herself personally employed the plaintiff; that she did not employ him through her husband acting as her agent; and that a. finding would not have been warranted “that the defendant employed plaintiff as a broker, based upon any hiring or employment of plaintiff by defendant’s husband,” and that therefore the finding is ambiguous.

This contention is not tenable. We construe the language of the court as a specific finding that the defendant personally employed the plaintiff to procure a tenant; and it cannot be said as matter of law to have been without evidence to support it; if the judge believed the testimony of the plaintiff it was well warranted. If it is construed as a general finding, the result would be the same. The rulings requested were rightly refused.

Order dismissing report affirmed.