Practice, Civil, Exceptions, Conduct of trial. Broker, Commission. Evidence, Presumptions and burden of proof, Relevancy and materiality. Custom. Witness, Cross-examination.
Where, at a trial before a judge without a jury, the evidence is conflicting and contradictory and is comprised both of documents and of oral testimony, a finding of fact by the presiding judge, which the evidence introduced by one of the parties tends to prove, will not be reversed by this court on exceptions taken by the defeated party.
At the trial before a judge without a jury of an action of contract brought by a real estate broker to recover a commission alleged to be due him from the defendant for negotiating a lease from the defendant to one H., the judge found, on evidence which warranted the finding, that, at a time when one C. held the premises under a lease from the defendant, the defendant employed the plaintiff to procure for him another lessee, the defendant knowing that C. was not a strong tenant financially; that the plaintiff procured H. as a lessee, and the terms of a lease from C. to H. were agreed upon; that C. then died, the defendant terminated the lease under which C. had held the premises and executed a lease to H. for the remainder of the term covered by C.'s lease; that the negotiations with C. and those with the defendant after C.'s death were all virtually parts of one transaction; that the defendant accomplished his purpose of making a lease by reason of the services of the plaintiff as broker, and that the plaintiff was the efficient cause of bringing about the lease. Held, that a finding for the plaintiff was justified.
At the trial before a judge without a jury of an action of contract by a real estate broker to recover a commission alleged to be due him for negotiating a lease for the defendant of property in Boston, the plaintiff offered and the judge admitted evidence tending to show that it was a custom in Boston, in cases where a lease was negotiated and a broker was entitled to a commission but there had been no express agreement as to whether the lessor or the lessee should pay the broker's commission, for the lessor to pay it. The judge admitted the evidence and the defendant excepted and, at the close of all the evidence, asked for a ruling that the custom as a matter of law could not be taken into consideration by the judge. The judge found, on evidence which warranted him in doing so, that the defendant employed the plaintiff to procure a lessee of the premises; and he granted the request for ruling "but solely for the reason that a contract of employment existed between the plaintiff and the defendant." Held, that, in view of the finding, the exception to the admission of the evidence of the custom became immaterial.
At the trial of an action of contract by a real estate broker to recover a commission alleged to be due him from the defendant for negotiating a lease for the defendant, the defendant contended that not the plaintiff, but one P. negotiated the lease for him, and, in support of his contention, offered in evidence a letter to him from the lessee, who was living at the time of the trial. The letter bore the same date as did the lease, and in it the lessee stated: "In anticipation of the lease about to be entered into between us . . . and in answer to the inquiry as to who is the broker who has actually effected this deal, would say that . . . we approached P., as your agent, and have carried on our negotiations directly with him and he is the sole party who has been instrumental in any way in effecting this deal between us." The evidence was excluded. Held, that the evidence properly was excluded since it contained a recital of past transactions and was not a communication made in the course of negotiations for the purpose of bringing about a lease.
It is within the discretion of the judge presiding at the trial of an action of contract by a real estate broker for a commission alleged to be due to him for negotiating a lease for the defendant, in which a question at issue is whether the defendant had more than one interview with the plaintiff with regard to leasing the premises and the defendant has testified in direct examination that he had not had more than one such interview, to permit him to be asked in cross-examination whether he ever had had an interview with the plaintiff about the time of the transactions in question with regard to mortgaging certain other premises, the plaintiff stating that he desired to fix the date of the conversation as to mortgaging and thus to refresh the defendant's recollection with regard to other conversations as to the leasing transaction; and an exception by the defendant to the allowance of such question will not be sustained, especially where it appears that, in answer to it, the defendant stated that he did not remember any such interview with regard to mortgaging other premises.
HAMMOND, J.
This case is before us upon exceptions taken by the defendant. It was tried by a judge sitting without a jury. The judge found (1) that the plaintiffs were employed by the defendant as brokers to procure a lessee for the premises, (2) that at the time the plaintiffs were so employed the premises were occupied by one Cook under a lease from the defendant, (3) that Cook was not a strong tenant financially as the defendant knew, (4) that the terms of a lease from Cook to the Henry H. Tuttle Company, a lessee procured by the plaintiffs, were agreed upon, (5) that Cook died on January 26, 1906, without executing the lease, (6) that after Cook's death the defendant terminated the lease for breach of condition and on February 7, 1906, executed to the Henry H. Tuttle Company a lease of the premises in question for a term equal to the residue of Cook's term, (7) that the negotiations with Cook and those with the defendant after Cook's death were all virtually parts of one transaction, (8) that the defendant accomplished his purpose of making a lease by reason of the services of the plaintiffs as brokers in procuring a lessee, and (9) that the plaintiffs were the efficient cause of bringing about the lease. If no error has been made in matters of evidence and these findings are justified by the evidence, they must stand, and, if they stand, the plaintiffs have made out a case.
It is strenuously argued by the defendant that of the findings, neither the first, third, seventh, eighth or ninth as above numbered is warranted by the evidence. In cases where there is a contention that the evidence does not warrant a certain finding or verdict, it is always a question, to be solved under a sound discretion, as to what extent the evidence should be rehearsed in the opinion. In a close case, especially where the decision turns upon distinctions somewhat subtle and the materiality and probative force of some portions of the evidence are not likely to be appreciated without careful marshalling and comparison of its different parts, direct and circumstantial, it is frequently useful and indeed desirable that the evidence should be recited and discussed in detail; but often, especially where the evidence is such that its bearing may be easily seen, and where there is a conflict of testimony and the decision turns upon the comparative degree of credit to be given to the witnesses on the one side and the other, no useful purpose is served by going over the evidence in detail.
Upon a careful study of the evidence in the case before us, the materiality and probative force of its different parts and the proper inferences to be drawn from the facts proved are easily seen and comprehended. It is true there is conflict in the oral evidence, but in such a case, to which side credit should be given is for the trier of the facts, whether judge or jury. We are of opinion not only that the findings to which the defendant objects are warranted by the evidence, but also that they are by far the most reasonable explanation of the acts of the parties, and that this so clearly appears that no further discussion is necessary.
There being evidence to support the finding that the plaintiffs were employed by the defendant, the exceptions to the evidence as to the existence of a custom that in certain cases the lessee shall pay the broker's commission becomes immaterial. And for the same reason the defendant has no ground for complaint as to the manner in which the judge dealt with his fifth request.
The letter of Redfern, for reasons stated by the judge at the time, was properly excluded. The questions put to the defendant on cross-examination as to whether he had some talk with Taber about the time of Cook's death in regard to placing a mortgage upon certain other property was admissible within the discretion of the judge for the limited purpose for which it was offered; and in any event the defendant could not have been prejudiced by the answer.
For reasons stated by the judge, the defendant was not entitled to the third ruling requested. It was a request for a ruling upon the effect of a single fact, leaving out other material facts which existed in the case.
It follows that the record shows no error. The findings must stand.
Exceptions overruled.