Manilla v. Houghton

Knowlton, J. The defendants offered to put in evidence the declarations of one Sinclair, in the absence of the plaintiff, as tending to show that the plaintiff in what he did about the sale was the agent of Untermeyer, and not of the defendants. These were rightly excluded, for the reason that there was nothing to show that Sinclair was authorized by the plaintiff to make them. Boynton v. Laighton, 1 Allen, 509. Bowker v. Delong, 141 Mass. 315. The evidence relied on by the defendants to show Sinclair’s authority goes no further than a request to Sinclair by the plaintiff to see the defendant Houghton, and to urge him to sell his brewery to Untermeyer. This request was entirely consistent with an honest purpose on the part of the plaintiff, as the agent and friend of the defendants, to induce them to make the sale, because he believed it for their interest to make it. It has no tendency to show that Sinclair was the plaintiff’s agent for any other purpose than to advise the sale, and it does not justify the introduction of declarations of Sinclair in regard to the relation of the plaintiff to either of the parties. The ruling that, if the plaintiff failed to establish the special contract declared on, he might recover on the account annexed if in the opinion of the jury the evidence warranted it, was correct. Harrington v. Baker, 15 Gray, 538. Fitzgerald v. Allen, 128 Mass. 232. Simmons v. Lawrence Duck Co. 133 Mass. 298. 468 There was sufficient evidence to justify an estimate of the value of the plaintiff’s services under this count. The jury were informed what the transaction was, and were entitled to apply their common knowledge to the facts of the case. Besides, there was testimony that, at the first interview between the plaintiff and the defendant Houghton, the plaintiff told Houghton that the commissions for sales at good prices were five per cent on the amount received for the property. This was competent to be considered in determining what such services were worth. Exceptions overruled.