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In action for brokerage services in negotiating purchase of land, there was no harmful error in exclusion of evidence as to price which defendant paid, there being no evidence tending to show plaintiff had any connection with sale of property by owner to defendant. 3. Appeal and error 1052 (5)-Verdict for defendant rendered evidence of price paid by defendant for land as basis of amount of compensation immaterial.

In action for brokerage services in purchasing land for defendant, evidence as to price paid by defendant for land became immaterial

as basis for ascertainment of amount of com

pensation due plaintiff, on rendition of general

verdict for defendant on merits.

4. Trial

122-Argument of counsel as to failure to recall witness to negative testimony given in rebuttal held improper.

Where there was radical contradiction in

testimony of witness for each party, defendant
was under no obligation to recall his witness
to testify again on same point to negative
categorically testimony of other witness in re-
buttal, and argument of plaintiff's counsel urg-
ing significance of fact of failure to recall wit-
ness was improper.

5. Trial 133(1)-Rule stated as to duty of
judge to guard against improper argument.
It is plain duty of judge presiding over
jury trial to take note of improper argument
and to neutralize its effect, but it is not prov-
ince of court to confine arguments to partic-
ular line of thought or within too narrow limits.
6. Trial 133(1)-Time stated for action by
judge in stopping improper argument.

Judge is not required to stop counsel at moment of unwarranted argument, but may do so in a flagrant case.

7. Appeal and error 842 (1)-Remark of judge concerning counsel's argument held not ruling as to pertinent question of law which could be subject of exception.

Remark of judge to jury, on informing counsel that argument was unwarranted, that, if defendant's witness had been recalled to testify again as to paper in further contradiction to plaintiff's witness on rebuttal, his evidence would have been excluded, was not ruling of law by judge as to pertinent question of law arising at trial, and was not rightly subject to exception.

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RUGG, C. J. This is an action by a real estate broker to recover compensation for services alleged to have been rendered by him to the defendant. The original declaration contained two counts, in each of which it was alleged that the plaintiff was employed by the defendant to negotiate for him the purchase of certain real estate, where fore the defendant owed the plaintiff either a certain percentage on the price or a fair and reasonable compensation.

At the close of the evidence the judge ruled that there could be no recovery under the declaration. That ruling was right. There was no evidence to support the cause

of action set forth in those two counts.

The only evidence tending to support any obligation on the part of the defendant to the plaintiff was to the effect that the latter employed the plaintiff to secure from third persons a release or cancellation of their

right to a conveyance in accordance with an agreement in writing with the owner of certain land.

The plaintiff was allowed to amend his declaration by adding three new counts setting forth in several forms of pleading a cause of action, tending to support which there was some evidence. The case was submitted to the jury on these additional counts alone. Every right to which the plaintiff was entitled thus was secured to him.

[1] The photograph of the real estate to which the plaintiff's cause of action related was excluded rightly. It had no bearing on the question whether the contract was made as alleged by the plaintiff. It was irrelevant to any issue raised by the pleadings.

[2] There was no harmful error in the exclusion of the offer of evidence as to the price which the defendant paid for the purchase of the property. There was no evidence tending to show that the plaintiff had any connection with the sale of the property by the owner to the defendant. That trans

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

by the plaintiff and testified in substance
that, while he was in another office, the de-
fendant came across from the office of Mr.
Morse and said he would like the paper con-
taining his offer for the purpose of making a
copy, that he gave the paper to the defend-
ant and a few minutes later went to the of-
fice of Mr. Morse, who was then alone, the
defendant not being present, and who was
"making a copy but was adding something
more to it after making his copy.
I went in a little later,
could'nt get it. It wasn't to be found and
had been mislaid.
Mr. Morse said
it had been mislaid."

action on the evidence was arranged entirely | fendant had rested, Southwick was recalled between the owner and the defendant, each acting in his own interests and without the intervention of the plaintiff. All that the evidence tended to show in its aspect most favorable to the plaintiff was that he was employed to secure from two persons the release or extinguishment of such rights as they had acquired under an earlier agreement with the owner to sell to them at a stipulated price the real estate in question. The excluded evidence was offered on the ground that it was all a part of one transaction in the mind of the defendant to extinguish the rights of the proposed purchasers under the earlier agreement and himself to buy the real estate from the owner. That was somewhat remote. Exclusion of the evidence on the ground on which it was offered was at best discretionary with the trial judge.

[3] The evidence was not offered on the ground that the price paid by the defendant afforded a basis for the ascertainment of the compensation due to the plaintiff for his services. The general verdict for the defendant on the merits renders the evidence immaterial on that issue.

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[4] Plainly there was a radical contradiction in the testimony of these two witnesses. Mr. Morse, when called by the defendant, had stated in clear terms that the only time he ever saw the paper was when both the defendant and Southwick were present in his office. The witness Southwick, when recalled after the defendant had rested, gave testimony of a totally different nature on the same point. The defendant was under no obligation to recall Mr. Morse to testify again on the same point. Therefore, the ar

The counsel for the plaintiff in his argu-gument of counsel for the plaintiff, urging ment to the jury stated:

"While he didn't mean to attack Mr. Morse's character, it was significant that Mr. Morse [a witness called by the defendant] didn't deny the specific statements of Mr. Southwick [the owner of the real estate before its sale to the defendant and a witness called by the plaintiff] about the paper that Mr. Southwick got from Mr. Ross, and that Mr. Southwick said that he went in there and Mr. Morse was adding something to the paper, and afterwards claimed that it had been mislaid and that Mr. Morse had not denied these things."

The counsel was then stopped by the judge, who stated that this argument could not be permitted, as Mr. Morse had testified to the only time he had seen the paper. The counsel then stated to the judge that Mr. Morse had not been recalled to deny the testimony given to that effect by Mr. Southwick. The judge thereupon said to the jury that he should not have permitted Mr. Morse to be recalled for that purpose because he had already testified to the fact.

The course of the testimony as shown by the bill of exceptions, was that Southwick, when first called by the plaintiff as a witness, testified that the defendant gave him a paper containing an offer for the real estate and that he took it to the office of the witness Morse. After the plaintiff had rested, Mr. Morse was called as a witness by the defendant. He testified in substance that the only time he ever saw the paper addressed to Southwick, signed by the defendant and containing an offer for the real estate, was when both Southwick and Ross were in his office on a specified occasion. After the de

the significance of the fact that Mr. Morse had not been recalled to negative categorically the testimony in rebuttal given by the witness Southwick, was unwarranted.

[5, 6] It is the duty of the court to be solicitous at all times to guard against improper arguments to the jury. In appropriate instances undue zeal of a member of the bar in behalf of a particular client ought to be curbed by calling his attention to departures from proper arguments founded upon the evidence. The rights of parties must be protected against the effect of arguments which are not warranted. The judge is not required to stop counsel at the moment of his offense. Judicial duty to see that there is fair trial may render that course desirable under certain circumstances. The judge in a flagrant case may rightly think that the only way to accomplish justice is to stop the improper argument forthwith rather than to permit it to proceed to a conclusion and later attempt in his charge to counteract the baleful influence which in the meantime may have already warped the opinion of jurors. Much must be left to the discretion of the judge in this respect. It is to be remembered that his is the trained mind charged with the heavy responsibility of seeing that the scales of justice are even between the parties and incline to the one side or the other only according to the weight of credible evidence, and that no foreign considerations be interjected in argument to affect their balance. It is the plain duty of a judge presiding over a jury trial to take note of improper arguments and to neutralize their effect. It is his primary obligation to see that a fair

on the mortgage, and that Southwick replied, 'Nothing;' that the court requested of Mr. Stapleton to correct his argument. Mr. Stapleton declined to do so, and the court noted the exception of Mr. Keedy to that portion of the argument."

trial is had and that no undue advantage is taken by either side. Obviously it is not the province of the court to confine arguments to a particular line of thought or within too narrow limits. O'Driscoll v Lynn & Boston Railroad, 180 Mass. 187, 62 N. E. 3; Commonwealth v. Brownell, 145 Mass. 319, 14 N. It appears from the record that this was E. 108; O'Brien v. Boston Elevated Rail- error in that, although the question as statway, 214 Mass. 277, 101 N E. 365. But the ed was asked of the witness Southwick, he learned, wise and impartial judge, who dis- did not reply, “Nothing," and was not percharges the duties of his office, is the direct-mitted to answer the question at all. The ing spirit and dominating force of a trial to plaintiff, however, took no exception to the the end that a just result be reached. The statement of the judge at the close of the arconduct of the judge in this respect in the gument. The only exception was taken by case at bar was not open to exception. counsel for the defendant, which of course is Whitney v. Wellesley & Boston Street Rail- now immaterial. The only exception of the way, 197 Mass. 495, 502, 84 N. E. 95; Com- | plaintiff was to the statement by the judge monwealth V. People's Express Co., 201❘ during the argument that he should at its Mass. 564, 580, 581, 88 N. E. 420, 131 Am. close ask him to correct a statement of fact. St. Rep. 416; Commonwealth v. Richmond, There was a manifest error in the argument 207 Mass. 240, 250, 93 N. E. 816, 20 Ann. Cas. of the plaintiff's counsel in that the question 1269; Tildsley v. Boston Elevated Railway, was asked of the witness Southwick but was 224 Mass. 117, 119, 112 N. E. 499; London v. excluded on objection by the counsel for the Bay State Street Railway, 231 Mass. 480, plaintiff. Hence he had no right to make 121 N. E. 394; Commonwealth v. Dyer, 243 the argument. Commonwealth v. Coughlin, Mass. 472, 508, 138 N. E. 296, and cases there 182 Mass. 558, 563, 66 N. E. 207. The statecollected. ment of the judge, to which the plaintiff excepted, was correct and proper. Counsel for the plaintiff did not then ask to be advised as to the nature of the fact which, the judge said, he would be asked to correct. Nothing appears to have been said in the charge on the subject and no exception was taken by the plaintiff on that point.

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[7] The remark to the jury, that if Mr. Morse had been recalled to testify again as to the paper in further contradiction to the witness Southwick, his evidence would have been excluded, was not a ruling of law by the judge as to a pertinent question of law arising at the trial and hence was not rightly subject to exception. It was a hypotheti- The other exceptions do not require discal statement based upon a condition which cussion one by one. Randall v. Peerless Mocould not come into existence. It is not in- tor Car Co., 212 Mass. 352, 386, 99 N. E. 221; timated that, if the occasion had arisen re- Commonwealth v. Dyer, 243 Mass. 472, 507, quiring a ruling upon the point, the suggest- 138 N. E. 296. The record has been examed ruling would have been open to legal ob-ined with care and no reversible error is disjection.

[8] The judge further said to the jury at the same colloquy during the argument of the plaintiff's counsel:

"I shall, at the end of the argument call your attention to another fact which I shall ask you to correct."

The plaintiff's counsel excepted to that remark. At the conclusion of the argument in behalf of the plaintiff there was a conference at the bench during which the judge made a statement to the stenographer, but not to the jury, as follows:

covered.

Exceptions overruled.

BLANCHARD LUMBER CO. v. MAHER.
MAHER v. BLANCHARD LUMBER CO.
(Supreme Judicial Court of Massachusetts.
Hampden. Oct. 18, 1924.)

1. Reference 105-Motion for directed ver-
dict based on rulings on law in auditor's re-
port held properly denied.

Where auditor's report, which finds generally for one party in certain sum, is read to jury, motion by such party at close of all the evidence for directed verdict in accordance with terms of auditor's report is rightly denied; law of case being for court, and it being for jury to pass on all evidence under suitable instructions.

"You will note that in the course of Mr. Stapleton's argument he made a statement to the effect that the jury would notice that Mr. Keedy asked Mr. Southwick the amount for which the second mortgage was written, but that he did not at any time ask Mr. Southwick the amount which was due; that Mr. Keedy signified his objection to that argument to the court, and the court said that he would at the close of Mr. Stapleton's argument call it to Mr. Stapleton's attention, and call his attention to the fact that Mr. Keedy asked of the witness Southwick how much had been paid For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. Evidence 460 (11)-Parol evidence held admissible to explain scope of words descriptive of quality of goods sold.

Parol evidence held admissible to show that buyer and seller mutually understood that

(145 N.E.)

words "shall be dry," in one order, were ap-, 125 N. E. 299; Boston Box Co., Inc. v. Shaplicable to all spruce ordered, though other piro, 248 Mass. - 144 N. E. 233. orders were silent on matter, in view of conversation before orders were made and correspondence following, as against contention that contract may not be varied by parol. 3. Principal and agent

that there was error in the admission of The principal contention of the seller is evidence because it varied the terms of the contract in writing between the parties, and 103(6)-Ostensible that, if it had been excluded, the auditor's powers of agent held, on record, his real pow-report would have been conclusive. The sell

ers.

Ostensible powers of agent of seller of lumber when dealing with buyer, seller having of fered no evidence of any limitation of the agency, held, on the record, his actual powers.

4. Trial 296(1)-Complaint as to instruction
without merit where other instructions to
same effect were not excepted to.
Exception to portion of charge was without
merit, where other instructions to same effect
were not excepted to.

Exceptions from Superior Court, Hampden
County; Richard W. Irwin, Judge.

er's salesman, one Amidon, interviewed the buyer's president at its place of business concerning the sale of lumber, and was informed that the company desired to purchase "out spruce boards." The jury would have been warranted in finding on all the evidence, that Amidon was acquainted with the nature of the buyer's business, which substantially consisted in making boxes for paper manufacturers to be used in the shipment of high grade paper, and that the buyer intended to use the boards in the manufacture of the boxes, which must be dry or the paper would deteriorate. The buyer thereupon gave five orders prepared by Amidon to which he signed the seller's name, for "one million out spruce boards," dated respectively April 9, 12, 19, 21 and May 1, 1920. The orders, with the exception of the order of April 21, which

Actions of contract by the Blanchard Lumber Company against Thomas C. Maher, trustee in bankruptcy of the Aker-Allen Lumber Company, Inc., and by the latter against the former. Verdicts for defendant in first case and plaintiff in second case, and the Blanchard Lumber Company brings exceptions. Ex-contained the words "ship dry," made no ceptions overruled.

Gaston, Snow, Saltonstall & Hunt, of Boston (Edward C. Thayer, of Boston, of counsel), for Blanchard Lumber Co.

T. C. Maher and G. J. Scanlon, both of Holyoke, for Thomas C. Maher.

BRALEY, J. The first action is to recover damages for the failure of the Aker-Allen Company to accept and pay for lumber which the plaintiff alleges it agreed to buy. The second action is to recover damages from the Blanchard Company for nonperformance of alleged contracts to deliver lumber of the kind and quality ordered. The cases, which were tried together, having been referred to an auditor, upon the coming in of his report a trial was had to a jury, which returned a verdict for the plaintiff in the second case, and a verdict for the defendant in the first case, and the cases are here on exceptions of the Blanchard Company. We shall refer to the Blanchard Company as the seller and to the Aker-Allen Company as the buyer.

[1] The auditor having found generally in favor of the seller for $9,673.69, the report was read to the jury, and the plaintiff in the first case rested, and the buyer having introduced evidence in defense of the first action

and in support of the second action, the seller
at the close of all the evidence moved for
a directed verdict "in accordance with the
terms of the auditor's report." The motion
was denied rightly. The law of the case
was for the court, and the jury were to pass
on all the evidence under suitable instruc-
tions.
Zembler v. Fitzgerald, 234 Mass. 236,

reference to the condition of the lumber. During the period covered and before any lumber was shipped, there was correspondence between the parties relating to the orders and their acceptance. The seller wrote the buyer April 13

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This refers only to the order of April 19, calling for "50 M. up out boards." The buyer replied April 23:

"That our files may be complete we wish you would advise us as soon as possible if we are to understand that the following stock has been accepted by you on sales slips left with us by your Mr. Amidon, No. 395. April 4th, 6 cars 2x5 and wider Out Spruce resawed and P 1x3, and wider Out Spruce P IS 45 M Out I S 13x16" @ $15.25. No. 394 April 9th 50 M. Spruce Boards PI S. All at 45.25. No. 396 April 12th 250 M feet Out Spruce Boards PIS @$45.25. No. 402 April 21st 1000 M ft 1x4 and wider Out Spruce Boards P IS @ $45.25. All stock to be shipped when dry. Let us have a prompt reply.

The seller in an undated letter apparently written April 29 used this language:

"Again referring to your order for the one side 13.18'. We believe that we have another million feet of out spruce boards dressed 1 party lined up to take practically all of this order. This would be for summer shipment. Please advise us how late in the season we may have to clean up the order."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The buyer answered:

"Your letter of the 29th received, and we trust that you have made arrangements to take care of us on the Spruce Outs, and we can use these any time this year, but we prefer that all shipments be made before September 1st if you can so arrange it."

for which the boards were bought, and that the lumber must be dry, was therefore admissible. The cases of Stackpole v. Arnold, 11 Mass. 27, 6 Am. Dec. 150, De Friest v. Bradley, 192 Mass. 346, 78 N. E. 467, and Glackin v. Bennett, 226 Mass. 316, 115 N. E. 490, are plainly distinguishable.

[3, 4] The Blanchard Company also excepted "to such portions of the charge as stated that the contract was evidenced by the con

It was undisputed that the seller seasonably delivered and the buyer received "out spruce boards" called for under the orders of April 9 and 19 and May 1. Delivery un-versations of the parties." It is argued that der the orders of April 12 and 21 began the the parol evidence rule is substantive law, first part of July and continued until October. and the question can be raised even if there was no evidence that Amidon was without But the full quantity of lumber named in these orders was not shipped because the buyer declined to accept further shipments, claiming that the boards were unusable.

[2] The jury under appropriate instructions could find that the contracts consisted of the statements to Amidon, and the orders. Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 382, 15 L. R. A. (N. S.) 855; Davis v. Cress, 214 Mass. 379, 382, 101 N. E. 1081, and cases cited. There also was evidence that a representative of the seller at its place of business told the president of the buyer, who complained that the "boards were not fit for boxes to crate paper because the lumber was wet and green"; "that the boards were not up to what the Aker-Allen Lumber Company had asked for, what the Blanchard Lumber Company had intended to ship, and for the Aker-Allen Lumber Company to handle the boards and do the best they could with them, and that the Blanchard Lumber Company would reimburse them." There was further complaint that the boards as delivered were "wet and green" to which the response was, that the seller would reimburse the buyer for "any loss which they were put to either in market price," or for drying the boards so that they could be used. The jury could say that the representatives of the parties mutually understood that the words "Ship dry" in the order of April 21st was applicable to all the lumber. It also could be found, even on the auditor's report, that after receiving the orders, and before any shipment, the seller was informed by the correspondence that all stock was to be shipped when dry. The orders, the statements to Amidon, and the correspondence, were all to be considered. Lyman B. Brooks Co. v. Wilson, 218 Mass. 205, 208, 105 N. E. 607. The evidence introduced by the buyer to which the seller excepted, that Amidon was informed of the purpose

authority to bind the plaintiff. The judge
gave all the plaintiff's request, and it does
not appear that his attention was directed
The Blanchard Company,
to this defence.
as previously said, rested its case in each ac-
tion solely on the contention, that the orders
alone constituted the contract, which could
not be varied by extrinsic evidence. It of-
fered no evidence of any limitation of Ami-
don's agency, and his ostensible powers when
dealing with the buyer were on the record
his real powers. Danforth v. Chandler, 237
Mass. 518, 130 N. E. 105; Howard v. Hay-
ward, 10 Metc. 408, 419, 420; Sayles v.
Quinn, 196 Mass. 492, 82 N. E. 713; Howard
V. Fall River Iron Works Co., 203 Mass.
273, 277, 89 N. E. 615. The judge moreover
gave further instructions to which no ex-
ceptions were taken, as follows:

"It was my intention to tell you, and I now do so, that the contract entered into between the parties was made up of a memorandum signed by Mr. Amidon agent of the defendant Blanchard Company, and conversations between the parties,-the agreement and the talk that went with or inspired the memorandum. that-I don't understand that the contract was That contract was not made up in any form made with any formally drawn document, with statements in legal phraseology, and of technical character, but was done in an offhand way. Mr. Amidon comes in, meets these men, they talk about it, and the Aker-Allen Company said, 'I will take so much lumber if it is dry lumber, and what we need it for is for paper companies box business.' And the agent took out his memorandum book and puts down the contract. I think that is the way the contract was made between the parties."

We have examined all the exceptions, in so far as not waived, and, finding no error, the entry must be,

Exceptions overruled.

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