Bassett v. Rogers

Morton, J. We think that the case should have been submitted to the jury, and that the evidence which was offered by the plaintiff should have been admitted. The plaintiff contended that in making the sale the defendants were acting as his agents and brokers. There was evidence which the jury might properly have considered as bearing on that question, and it was a question of fact for the jury whether they were so acting. The plaintiff agreed to pay, and did pay, the defendants a commission for effecting the sale, which had some tendency to show that they were acting as his brokers. The agreement which he signed, and on which the defendants rely, bound him to convey, not to the defendants, but to their order, which tended to show that they were acting as intermediaries between the plaintiff and a purchaser. The order which the defendants procured from the plaintiff on Blanchard for the delivery of the personal property, and the receipt which they gave, also had some tendency to show that they were acting as agents for the plaintiff. It would have been competent for the jury to find that the transaction was in substance one where the plaintiff and Blanchard were engaged as principals, and the defendants were acting as their agents or brokers. There was nothing in the agreement inconsistent with this view. As already observed, it was not an agreement to sell to the defendants, but to their order. The defendants did not agree by it to purchase. It was consistent with the terms of the agreement, that it was taken by the defendants for their protection in negotiating a sale for the plaintiff. If they had made a sale for the consideration, and on the terms named in it, the plaintiff would have been bound by the sale. It did not purport to give them the right, if they succeeded in getting more than the consideration named, to pocket the difference between that and what was actually obtained. On the contrary, the only compensation referred to in it was a “ brokerage commission of three hundred and fifty dollars ” which the plaintiff was to pay them. If the defendants were acting as the agents or brokers of the plaintiff, good faith required that they should account to him for [51] all that they received from the sale of his property; and we think that there was nothing in the nature of the agreement to prevent the court from submitting to the jury the question whether that relation existed between them, and that it ought to have done so. We also think that the evidence which the plaintiff offered should have been admitted. For the purpose of assisting in interpreting and applying the agreement, it was competent for the plaintiff to show the circumstances under which the agreement was entered into, and the acts and declarations of the parties under it. Knight v. New England Worsted Co. 2 Cush. 271. Adams v. Morgan, 150 Mass. 143. Whittier Machine Co. v. Graffam, 156 Mass. 415. Such evidence is not admitted for the purpose, of varying or contradicting the written agreement, but to aid in getting at its true construction. The plaintiff also should have been permitted to show that the property had been and was in the hands of the defendants for sale, as brokers on commission, before and at the time of the agreement. Evidence of the representation of the defendants as to their object in taking the agreement, and its purposes so far as they were concerned, should likewise have been admitted. If of the nature which the plaintiff offered to show, they had a tendency to show that the agreement was procured by fraud and misrepresentation on their part. Exceptions sustained.