Opinion
March 13, 14, 1933.
November 29, 1933.
Present: RUGG, C.J., WAIT, FIELD, DONAHUE, LUMMUS, JJ.
Broker, Commission. Release.
A defence to an action by a broker for a commission earned in procuring a mortgage for the defendant was a writing, purporting to have been signed by the plaintiff under seal, reciting that he acknowledged receipt of a certain sum from the defendant and that he released and discharged the defendant of all demands and causes of action "resulting from any claims of broker's commission in placing any mortgages on the premises" in question, and concluding, "In witness whereof, I set my hand and seal." There was evidence that the writing, at the time when it was signed by the plaintiff, did not bear a seal nor contain the words, "I set my hand and seal." There was conflicting evidence as to what was done by the plaintiff and as to whether the plaintiff signed the writing as a receipt for the sum in question, intending to dispose of a claim for procuring another mortgage on the premises and not attaching any importance to the use of the plural word "mortgages" in the writing. The trial judge denied a motion by the defendant that a verdict be ordered in his favor. Held, that it was proper to deny the motion and to submit the action to the jury.
CONTRACT OR TORT. Writ dated July 29, 1929.
The action was tried in the Superior Court before Beaudreau, J. Material evidence and exceptions saved by the defendants are described in the opinion. There was a verdict for the plaintiff in the sum of $1,399. The defendants alleged exceptions.
The alleged release mentioned in the opinion was as follows: "I, Leo Robinson, hereby acknowledge receipt of $100 paid to me by . . . [one of the defendants], and in consideration thereof I hereby release, discharge, the . . . [defendants] of all demands, actions, causes of action, damages, liabilities, resulting from any claims of broker's commission in placing any mortgages on the premises. . . .
"IN WITNESS WHEREOF, I set my hand and seal this seventh day of January, 1929.
[Signed] LEO ROBINSON [Seal]"
W. Hartstone, ( H.N. Hartstone with him,) for the defendants.
E.M. Dangel, ( J.L. Crowley L. Aronson with him,) for the plaintiff.
This is an action to recover a real estate broker's commission for securing a mortgage. The defences were denial that the plaintiff obtained the mortgage, and a release of all claims for "placing any mortgages on the premises." There was contradictory evidence with regard to what was done by the plaintiff. Further there was evidence that when the paper set up as a release was signed by the plaintiff it did not bear a seal nor contain the words "I set my hand and seal" which appeared on the paper shown to the jury. The plaintiff testified that he signed a receipt for $100 intending to dispose of a claim for providing another, a second, mortgage on the premises, after being told that a first mortgage sought to have been negotiated by him had not been obtained; that he noticed the word "mortgages," but relied upon the above statement and attached no importance to the plural word. Other witnesses contradicted this flatly. It was permissible to find for either plaintiff or defendants according to the credit given the testimony. If the truth were as the plaintiff asserted, the alleged release was not a release under seal binding him; and he had obtained a mortgage as alleged for which no commission had been paid. The jury found for the plaintiff. The only exceptions are to the refusal to direct verdicts for the defendants. Without discussion of the evidence, it is manifest that the trial judge was right in refusing to determine the material facts on disputed testimony, and in sending the case to the jury.
Exceptions overruled.