Zilli v. Rome

DeCourcy, J. The plaintiff seeks in this action to recover damages for the breach of an agreement to convey a lot of land on Fairmount, Clarendon and Plymouth streets in the city of Fitchburg. The trial judge excluded the written agreement of sale made by a broker, the Shea Realty Company, and directed a verdict for the defendants. On the evidence presented the defendant Philip Rome would not be bound by this agreement, even if admitted. He was in South America; and the broker had not seen him nor received any communication from him with reference to the sale of this land, Whatever authority Shea had came from the defendant Abraham I. Rome. While there was evidence tending to show that Abraham purported to be acting for his brother Philip as well as for himself, and the jury could disbelieve the testimony of Abraham to the effect that he was not authorized to sell this parcel, nevertheless not enough was shown to bind Philip. There was no direct evidence that he authorized Abraham to act as his general agent to sell his real estate in Fitchburg. Nor did it appear that the declarations and conduct of Abraham, purporting to act as such agent, were brought home to Philip. The offer to show by the broker that he signed the agreement as agent for both defendants, was rightly excluded. His agency was denied, and could not be established by his own declarations. Ennis v. Wright, 217 Mass. 40. The earlier sale of a lot to one Maloney, standing alone, did not establish either general agency or authority to make the sale in question. See Cook v. Baldwin, 120 Mass. 317; Rice v. James, 193 Mass. 458. Accordingly there was no error in directing a verdict for the defendant Philip Rome. Rolfe v. Tufts, 216 Mass. 563. Newburyport Institution for Savings v. Brookline, 220 Mass. 300. [371] Under G. L. c. 235, § 6, the plaintiff had a right to go to the jury if there was evidence warranting a verdict against either of the defendants. Taft v. Church, 162 Mass. 527. The written agreement was admissible as against the defendant Abraham I. Rome; and was a sufficient memorandum under the statute of frauds. On the evidence it could be found that he placed the real estate in question in the hands of the Shea Realty Company for sale; that he met the plaintiff in the broker’s office, and later told Shea to close the bargain, get a payment from the plaintiff, and prepare the deed; that Shea did complete the trade, accepted payment of $150, and gave the defendant Abraham a copy of said memorandum of sale. It was not essential for the plaintiff to show that Abraham was the real owner of the land standing in his brother’s name; yet there was evidence tending to show that equitably he was at least a part owner. Even if he was only an agent, he could bind himself personally. There was ample testimony that he employed the broker to find a purchaser for the. Fairmount Street property, and authorized the sale to the plaintiff. Without reciting the evidence as to his dealings with this' and other property that “was in his brother’s name,” and his admissions as a witness, such as that “Shea had charge of selling it if he could get a fair price for it,” we are of opinion that the plaintiff had a right to go to the jury as against the defendant Abraham I. Rome. Worthington v. Cowles, 112 Mass. 30. Monk v. Parker, 180 Mass. 246. Johnstone v. Cochrane, 231 Mass. 472. Exceptions sustained.