Durgin v. Somers

Morton, J. This is an action to recover for services rendered in the sale of a lot of land in Boston. The evidence tended to show that Tuxbury, the owner of the land, had given a bond to convey it to Newman and Colby at the price of thirty-five cents per foot; that a considerable part of the price had been paid by Newman and Colby; that the defendants, in pursuance of an arrangement made with said firm and their creditors, took all their assets upon payment of a certain sum; that in order to avail themselves of the conditional interest they thus had in the land, [60] they were desirous of selling it, and employed the plaintiff as an agent or "broker to find a purchaser, agreeing to pay him for his services all that he could get over thirty-five cents a foot. At the trial the defendants offered to show that at the time of the plaintiff’s contract, he was interested in the land as owner or part owner, and did not disclose this fact to them, claiming that such concealment was a fraud upon them. But the court rightly ruled that the question of such ownership was immaterial. If this had been a case where there was a conflict of interests between the defendants and the owners of the land, or in which one oE the duties of the broker was to negotiate with the owners, it would have been want of good faith for the plaintiff to conceal the fact that he was interested as part owner. His interest as owner would be inconsistent with the duties which he assumed by accepting the employment of the defendants. Smith v. Townsend, 109 Mass. 500, and cases cited. But in the case at bar there was no such conflict of interests. Tuxbury was bound by his bond to convey the land for a certain price. The amount to be paid him was a mere matter of computation, and there was no occasion for any negotiation as to it. If a part of the duty of the plaintiff was to influence Tuxbury to give a deed to the defendants or to the purchaser he might procure, instead of making it to the obligees in the bond, the fact that he was interested with Tuxbury could not operate adversely to the defendants. It could not tend to induce the plaintiff to neglect their interests. If it appeared that he was authorized to sell the land for any price he might fix, and therefore to sell it for less than thirty-five cents a foot, it is possible that his interest as owner might induce him to sell at a low price for the purpose of thus receiving the balance due upon the bond, and thus might conflict with his duty to the defendants. But the fair inference from the bill of exceptions is that he was not authorized to sell for less than thirty-five cents a foot. At least the bill of exceptions does not show that he was thus authorized, and therefore it does not show that there was any conflict of interest which would make the failure to disclose his ownership a fraud upon the defendants. In this case his interest as part owner of the land is not inconsistent with a faithful performance of the duties he undertook in making the contract proved, and therefore the fact that [61] he did not disclose such interest ought not to avoid his contract and prevent him from recovering the compensation for his services which the defendants agreed to pay. For the same reasons the agreement between the plaintiff and Tuxbury was properly excluded, the only effect of it, if it applied to this land, being to show that the plaintiff had an interest in it. We are of opinion that, within the rule adopted in this Commonwealth, the letter of the defendants of July 12, 1872, was properly admitted in evidence. It contained admissions of independent facts pertinent to the issue on trial, which were admissible, though made in the course of a treaty of compromise. Emerson v. Boynton, 11 Gray, 395. Dickinson v. Dickinson, 9 Met. 471. Gerrish v. Sweetser, 4 Pick. 374. The court admitted it only so far as it contained independent statements of facts, instructing the jury that the offer of compromise in it was not admissible and was not to be considered by them. Ho exception lies to this ruling. The defendants contend that there was no evidence that they were partners, or that the contract with the plaintiff was within the scope of the partnership business. It does not appear that this question was raised at the trial, or that any ruling of the court was requested thereon. But waiving this objection, there was competent evidence upon these points. The defendant Somers testified that he and the other defendants were partners in 1871; the firm took the assignment of the bond as security for a debt due it, and were thus the parties for whose benefit the plaintiff’s services were rendered; they defended jointly and neither of the defendants disclaimed or denied their joint liability. There was competent evidence upon these and all the other issues involved in the case, and the court properly refused to rule, as requested by the defendants, that upon the whole evidence the plaintiff was not entitled to recover. The only other question raised by the bill of exceptions is as to the alleged variance between the allegations and the proof. The first count alleges, as the consideration of the defendants promise, that the plaintiff was to sell, or procure a purchaser for the land. The plaintiff testified that he was to procure a deed from Tuxbury. But this did not make a variance. The pro* [62] curing the deed was one of the incidents or details of his employment, not an independent service which need be set out in the declaration. This question, however, is immaterial, because the objection does not apply to the second count which is upon an account annexed for services, and upon which a judgment might be rendered if there was a variance under the first count. Exceptions overruled.