« ForrigeFortsett »
was allowed, and plaintiff excepted, question, Action of contract by Joseph J. Buono is presented whether evidence, in aspect most against James F. Cody (alias), with trustee favorable to plaintiff's contentions, supported process. Verdict for plaintiff. After verdict, verdict.
judge entered verdict for defendant, and 3. Appeal and error Om 1003—Weight of evi- plaintiff excepts. Exceptions sustained. dence was for jury.
Judgment for plaintiff on verdict. Weight of evidence was entirely' for jury, J. C. Coughlin, of Boston, for plaintiff. and is of no consequence on exceptions.
N. Barnett, of Boston, for defendant. 4. Brokers 54-When broker entitled to
RUGG, C. J. This is an action of contract commission for sale stated.
to recover a commission for procuring a purIf by contract broker was to have commission if he sold property, he was not oblig- chaser for real estate. At the close of the ed to show that actual transfer was made, but evidence the defendant moved that the jury his duty was done when he produced customer be directed to return a verdict for the deable, ready, and willing to pay owner's price, fendant. No action was taken on that moand whom defendant accepted.
tion, but the case was submitted to the jury
with appropriate instructions. After a ver5. Brokers Om54—Defendant's assent to terms dict had been returned for the plaintiff, but submitted by broker obviated necessity of before it was recorded, the judge reserved producing cash customer. Where terms of offer procured by broker verdict for the defendant if, upon the er.
leave with the assent of the jury to enter a were approved by defendant, who knew name of customer and inferentially accepted him, it ceptions taken or the questions of law rewas not necessary for broker to produce cus- served, the trial court or the Supreme Juditomer able, ready, and willing to pay cash.
cial Court should decide that a verdict for
the defendant ought to have been entered. 6. Brokers Cw52 -Broker held not obliged to
 It has been argued that this procedure show contract binding on his customer.
was unwarranted because it does not appear Where broker submitted terms of offer pro- that exception had been alleged to any rulcured by him, which were inferentially accept- ing or direction, or that any question of law ed by defendant, broker was not obliged to had been reserved in the course of the trial, show he had made contract binding on cus
and that hence the conditions prerequisite tomer.
according to G. L. c. 231, $ 120, for such ac7. Brokers 88(3)–Testimony of customer tion by the judge, did not exist. That ques
that he was ready and able to buy raised tion is not open on this record because no question of fact,
exception was taken to this procedure. Testimony of customer produced by broker  Subsequently the judge allowed a mothat he was ready, able, and willing to buy tion of the defendant to the effect that a property on terms stated in agreement with verdict be entered in his favor in accordance broker, and submitted to and accepted by de
with leave reserved. The plaintiff excepted. fendant, raised question of fact.
The question is thus presented whether there 8. Brokers Cm 88(2)-Whether broker treated was evidence in its aspect most favorable to
defendant as owner of property was fact his contentions to support a verdict for the question.
plaintiff. Exception to the allowance of this Broker's evidence of defendant's assertion motion without further specification was sufthat he owned the property made fact question ficient to raise this question. The bill of as to whether broker treated with him on that exceptions is in proper form to present that footing.
question. 9. Evidence 383(7)–Reference in broker's
There was testimony tending to show that agreement with customer to defendant's agen- the defendant came to the office of the plaincy for bank held evidentiary only.
tiff, a real estate broker, with a list of propRecital in written agreement between bro. erty which he wanted to sell, and that inker and his customer that, if broker, as agent, quiry was made about a ten-apartment house; was not satisfied with all details as arranged that the defendant said that the price was with defendant, representing bank, deposit $54,000; that there was a mortgage for $14,would be returned, held not admission, binding 000 on it, and that he, the defendant, was on broker, that he knew defendant was agent; owner of the building. The plaintiff said, it being only evidentiary.
"Then I am entitled to full commission in 10. Brokers Om88(2)—Broker held not to
case I should sell this building?" The deknow that defendant was agent only for sale fendant replied, “Absolutely." The plaintiff of premises.
took a prospective customer to see the propEvidence held not to show as matter of erty several times. He then telephoned to law that broker was bo to know that de- the defendant that his prospective customer fendant was agent for sale of premises only. was interested and was ready to pay a de
posit, and inquired if it was all right to Exceptions from Superior Court, Suffolk take a deposit of $500. The defendant said, County; Franklin T. Hammond, Judge. “Go ahead.” The plaintiff then drew a con.
Cow For other cases see same topic and KEY-NUMBER ir all Key-Numbered Digests and Indexes
(146 N.E.) tract between his customers and himself, ac- | patrick v. Gilson, 176 Mass. 477, 57 N. E. knowledging receipt of the deposit of $500 1000, and cases there cited." Taylor V. toward the purchase of the property and Schofield, 191 Mass. 1, 4, 77 N. E. 652; Cohen stating the terms of purchase to be, price v. Ames, 205 Mass. 186, 188, 91 N. E. 212; $54,000, of which, $44,000 was on a first | Willard v. Wright, 203 Mass, 406, 409, 89 mortgage to run for five years, $4,500 was to N. E. 559; Walker v. Russell, 240 Mass. 386, be paid in cash on the day of passing pa- 390, 134 N. E. 388, and cases there collected. pers, and the balance of $5,000 was to re-  There was evidence sufficient to warmain on a second mortgage at 6 per cent., rant a finding that the terms of the offer prointerest payable quarterly, to be paid within cured by the plaintiff were approved by the five years.
Three copies of the agreement defendant and that he knew the name of the were made, of which one was given to the pur- customer from the copy of the agreement chaser, one to the defendant and one kept handed him, and not only made no objection by the plaintiff. When the agreement was to him but inferentially accepted him. shown to the defendant on the day following If these were found to be the facts, it was its execution, he made no objection to it and not necessary for the plaintiff to produce a took it away with him. At the same time the customer able, ready and willing to pay the plaintiff said that his customer "would be price in cash, as he would have been required ready to complete the deal and pass the to do if no other terms had been mentioned. papers” and would want to engage a lawyer Pearlstein v. Novitch, 239 Mass. 228, 231, 131 to look up the title. The defendant said: N. E. 853. "It is all right. We will get together and
 The plaintiff was not obliged to show give you the old deed to look up the title." in these circumstances that he had made a
contract binding on his customer. GoodBefore this agreement was signed or the nough v. Kinney, 205 Mass. 203, 91 N. E. 295. deposit taken, the plaintiff gave to the de
 There was also evidence tending to fendant its full details as proposed, and ask- show that the customer produced by the ed if it was all right to go ahead, and the plaintiff was ready, able and willing to buy defendant replied: “It is all right; go ahead.” the property on the terms stated in the There was nothing in the agreement as to
agreement. The customer so testified. That the person who was to take the second mort
was enough to raise a question of fact. gage, because the defendant "said he would Walker v. Russell, 240 Mass. 386, 391, 134 N. take care of the financial part himself."
 If the plaintiff knew that the defendthe defendant by which the title might be ant was acting throughout as agent for some searched and after several days the plaintiff
one else, probably he could not be held as said to the defendant:
principal for the commission upon the evi"If this thing isn't going through, please tell dence here disclosed. But the plaintiff tesme, so that I can give my man his money back.” |tified that the defendant asserted that he
owned the property. Whether the plaintiti To this the defendant replied:
treated with him on that footing was a ques"No; he has got to live up to his agree- tion of fact. ment; you shouldn't give him the money back. I will bring you that deed. I will get every
“If the broker is ignorant what the defend
ant's relation to the land is, and is asked to thing fixed up now in a very short time."
find a purchaser for the land, and does find one, The defendant testified that:
who is willing to buy on terms satisfactory
to the defendant, his commission is earned, "If the plaintiff had secured a customer who
even if the defendant does not own the land met the owner's terms, he was entitled to a and afterwards is unsuccessful in buying it, commission whether or not the owner later re
or if for any other reason he cannot avail fused to sell.”
himself of the offer procured by the broker."  There was testimony tending to show Monk v. Parker, 180 Mass. 246, 248, 63 N. E. that a quite different contract was made 793, 794; O'Neil v. Reardon, 238 Mass. 120,
123, 130 N. E. 89; Zilli v. Rome, 240 Mass. between the plaintiff and the defendant; 368, 371, 134 N. E. 622. that the defendant said he was merely acting as agent for the owner, who never agreed [9, 10] The reference in the written agreeto the terms offered. The weight of the evi- ment between the plaintiff and his customer dence is of no consequence, now.
That was that if the plaintiff “as agent is not satisentirely for the jury.
fied with all details as arranged with Mr.  If the contract was found to be that Cody, representing the bank,” the deposit the plaintiff was to have his commission it would be returned without expense to the he sold the property, "he was not obliged to customer, was not an admission binding on show that an actual transfer had been made, the plaintiff that he knew the defendant but that his duty was done when be pro- was agent. It was only evidentiary. That duced a customer who was able, ready and statement, read in conjunction with the willing to pay the defendant's price, and plaintiff's testimony that the Federal Trust whom the defendant bad accepted. Fitze | Company (of which the defendant had said
he was a director according to some of the / tle deeds. Judgment for defendant, and evidence) held the first mortgage on the plaintiff excepts. Exceptions overruled. property, "that they were the owners,” and
C. F. Choate, 3rd, of Boston, for plaintifr. that the mortgage was all right for five
E. C. Park, of Boston, for defendant. years, may have been found to refer to the terms of that first mortgage and the time it
PIERCE, J. This is an action brought might remain. This is not a case where it under St. 1909, c. 490, § 45, as amended by can be said as matter of law that the plain. St. 1912, c. 390, to recover, as purchaser, the tiff was bound to know that the defendant amount paid by the plaintiff to the defendwas agent and not principal in view of all ant for 29 tax title deeds, and interest. his testimony. Sullivan v. Boston Elevated
The plaintiff, in September, October and Railway, 224 Mass. 405, 406, 112 N. E. 1025. November, 1914, at a tax sale for the col
The granting of the motion for the entry lection of unpaid taxes assessed on the land of verdict in favor of the defendant in ac- of John and Mary A. O'Brien, purchased of cordance with leave reserved, was
the defendant the several parcels of land deThe case was one for the jury. It is stated scribed in paragraphs numbered "1" to "10" in the exceptions that the case was submitted inclusive of count 1 of the declaration, and to the jury under appropriate instructions received 29 tax title deeds thereof, each datand that the verdict was returned for the ed October 15, 1914. They were acknowledg. plaintiff. That verdict on this record ought ed by the tax collector on October 17, 1914, to stand. This point is fully covered by and were recorded in the registry of deeds Kaminski v. Fournier, 235 Mass. 51, 55, 126 November 5, 1914. It was agreed by the deN. E. 279.
fendant that the tax titles were declared inExceptions sustained.
valid and the titles which stood in the name Verdict of jury as first returned to stand. of the purchaser, Harry C. Byrne, were deJudgment for plaintiff on the verdict.
clared to be void by reason of errors, omis-
It appeared by admissions of the defendant
fendant, on April 16 or 17, 1915, received a (Supreme Judicial Court of Massachusetts. notice purporting to be signed by Harry C. Suffolk. Feb. 27, 1925.)
Byrne, dated "15 April, 1915" to the effect
that the tax deeds dated October 15, 1914, 1, Taxation 819–Right to relief of grantee in tax deed is dependent on full performance were invalid by reason of errors, omissions of acts required by statute.
and informalities in the assessments and St. 1909, c. 490, $ 45, as amended by Stats.
sales, for 9 specified reasons. The notice 1912, c. 390, is a declaration that right to re-contained the further declaration, in sublief of grantee in tax deed is dependent on stance, that Harry C. Byrnę offered to surfull performance of all acts required to be render and discharge the said 29 deeds, or to done by him, and that execution of terms of assign and transfer to the town of Sharon statute is condition precedent to acquisition all his right, title, and interest in and to of right.
the described premises as the collector of 2. Taxation 821(4)-Failure of grantee of taxes for the town of Sharon should elect.
tax deed within six months after date of the It was conceded by the defendant that the deed to offer by writing to surrender or dis- town of Sharon had refused to return the charge deeds, precluded recovery of money purchase money or pay the plaintiff any part paid therefor.
thereof. Where offer by purchaser to discharge tax
A judge of the superior court heard the deeds and statements of reason for invalidity case without a jury, and at the close of the of deeds was not given to tax collector or filed evidence refused to rule, as requested by within six months from date of deed, condition of right to recover under St. 1909, c. 490, $ 45,
the plaintiff, that as amended by St. 1912, c. 390, was not per- "1. Upon all the law and the evidence the formed by him; "date of the deed” fixing exact plaintiff is entitled to recover the amount of immovable datum from which beginning and his declaration. end of specified time could be indisputably as- "2. The notice sent by the plaintiff upon certained.
April 15, 1915, was due and sufficient notice
under chapter 390 of the Acts of 1912. Exceptions from Superior Court, Suffolk "3. The date 'April 15, 1915' on the notice County; P. M. Keating, Judge.
sent by the plaintiff to the defendant is eviAction of contract, under St. 1909, c. 490, to the collector within six months after the
dence that the plaintiff offered by writing given $ 45, as amended by St. 1912, c. 390, by Harry date of the deed to surrender and discharge C. Byrne against the Inhabitants of the Town his deed or to assign and transfer to the town of Sharon to recover money paid for tax ti-l all his right, title and interest in the premises,
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(146 N. E.) and if such evidence is unrebutted is conclu- , error, omission or informality in any of the sive that the notice was given seasonably un- proceedings for assessment and sale, had no der the statute.
remedy against the city or town. Lynde v. “4. Chapter 260, § 2, of the General Laws Melrose, 10 Allen, 49; Williams v. Dedham, (statute of limitations) does not apply to the 207 Mass. 412, 93 N. E. 96; St. 1862, c. 183, present action of the plaintiff against the defendant.
gave to such a purchaser a right to receive "5. The statute of limitations did not begin back the money paid upon the surrender and to run until it had appeared that by reason discharge of his deed, without limitation as of error, omission or informality in the as- to time. St. 1878, c. 266, and all subsequent signment or sale the plaintiff had no claim up- related statutes down to St. 1912, c. 390, have on the property sold.
continued such right, but subject to a pro“6. Under chapter 390, Acts of 1912, the viso or condition that the purchaser so cirstatute of limitations does not begin to run cumstanced should within two years from until the purchaser has surrendered and dis; the date of the deed" offer in writing to surcharged his deed or assigned and transferred to the town all his right, title and interest in render and discharge his deed or to assign the premises.
and transfer to the town all his right, title "7. Under chapter 390, Acts of 1912, the and interest therein as the collector shall statute of limitations does not begin to run elect. These statutes provide that the offer until demand for payment has been made upon shall "contain a specific statement of the reathe city or town and such payment has been son why the holder has no claim on the land refused by the city or town.
sold, with the evidence upon which he re"8. If the notice under the statute is made lies"; and the further provision that “no and dated within the six months required by the statute, such a notice is sufficient as far city or town and no treasurer or collector as time is concerned."
thereof, shall pay or be liable for any amount
due under the provisions of this section unThe judge ruled, as requested by the de- less such statement is filed." fendant, that
[1, 2] The statute is a plain declaration "3. Chapter 390 of the Acts of 1912 fur- that a right to have the relief is dependent nished the exclusive remedy for the recovery upon the full performance of all acts requirof money paid to a town for tax deeds which ed by the statute to be done by the purchasproved to be invalid.
er; and that the execution of the terms of "4. The burden is on the plaintiff to show the statute is a condition precedent to the accompliance with the requirements of chapter quisition of the right. Williams. v. Baker, 390 of the Acts of 1912.
209 Mass. 92, 95 N. E. 78. St. 1912, c. 390, “5. No action can lie against the town upon gives further emphasis to the importance of an agreement express or implied (except as implied under the terms of chapter 390 of the the limitation of time within which the ofActs of 1912) that if the tax deeds should be fer and the statement of reasons may be proved to be invalid after a sale, the money given and filed, by reducing the time for paid for them should be returned by the town such action from two years to six months to the purchaser.
from the date of the deed. The words "date “6. Upon all the evidence the plaintiff did of the deed” as used in the statute are in. not, within six months after the date of the tended to fix an exact immovable datum from deed, offer by writing given to the collector to which the beginning and the end of a specisurrender and discharge his deeds or to assign and transfer to the town all his right, ti- fied time may be indisputably ascertained by tle and interest in the premises.
all interested persons; and are not intended "7. The offer in writing is not given to the to mark a point in time which becomes cercollector until it reaches him.
tain only through reference to a time when the "8. Upon all the evidence the finding should deed became effective by a delivery with inbe for the defendants.
tent to pass title. The judge was warranted "9. The alleged notice does not comply with in finding as he presumably did on the unthe requirements of c. 390 of the Acts of disputed evidence of the collector of taxes, 1912."
that the offer and the statement of reason The plaintiff duly excepted to the court's therein was not given to the collector or refusal to find for the plaintiff, to its refusal filed within six months from the date of the to grant his rulings numbered "1" through deed. It follows that the condition of the "g,” and to its allowance of the defendant's right was not performed by the purchaser; requests for rulings numbered “3” through that the finding for the defendant was right "9."
and was required by law to be made. It Prior to the enactment of St. 1862, c. 183, further follows that the exceptions of the $ 6, a purchaser of a tax title which sub- plaintiff must be overruled. sequently proved invalid, by reason of any Exceptions overruled.
RUGG, C. J. The plaintiff seeks by this DAVIS V. CALDERWOOD et al., Board of suit in equity to enjoin the defendants, who Registration in Medicine,
constitute the board of Registration in Med
icine (G. L. c. 13, & 10), from proceeding with (Supreme Judicial Court of Massachusetts. Hampden. Feb. 27, 1925.)
a hearing against him pursuant to a notice
issued for him to show cause why his reg. 1. Physicians and surgeons Om2--Statute regu- istration as a practitioner of medicine in this lating practice of medicine held valid.
commonwealth should not be revoked. The G. L. c. 112, regulating practice of medi- case is reported on the bill and an order for cine, and conferring powers of registration of an interlocutory decree, which it is agreed physicians and of revocation of registration for contains all essential facts. cause on board of registration, held valid.
It is assumed that the plaintiff would suf2. Constitutional law. Omw 318-Statute regulat. fer irreparable injury in his property and ing practice of medicine constitutional,
personal rights if the defendants should proAs in proceeding, to revoke registration of ceed to revoke his registration, and that practitioner of medicine, G. L. c. 13, $ 10, re- therefore in this suit he may question the quires hearing before public board, at which constitutionality of the statute under which practitioner may be represented by counsel and they are proceeding. Moneyweight Scale Co. call witnesses, and provides for further hearing, revision, and reversal, if justice demands Shuman v. Gilbert, 229 Mass. 225, 228, 118
v. McBride, 199 Mass. 503, 506, 85 N. E. 870; such action, every constitutional right is protected.
N. E. 254, L. R. A. 1918C, 135, Ann. Cas. 3. Physicians and surgeons Emoll (3)—Notice Mass. 279, 283, 125 N. E. 557;, Terrace v.
1918E, 793; Warr v. Collector of Taxes, 234 to show cause why registration should not be canceled not construed with technical Thompson, 263 U. S. 197, 214, 215, 44 S. Ct. strictness.
15, 68 L. Ed. 255. Notice issued to registered physician by
 The statute regulating the practice of board of registration in medicine, to show medicine and conferring powers of registracause why registration should not be revoked, tion of physicians and of revocation of such is not to be construed with technical strictness; registration for cause, has been before the it being assumed that further specifications court in numerous cases. Commonwealth v. would be given on proper request.
Porn, 196 Mass. 326, 82 N. E. 31, 17 L. R. 4. Evidence 83(1)-Presumption made in A. (N. S.) 94, 13 Ann. Cas. 569; Common
favor of regularity and fairness of procedure wealth v. Jewelle, 199 Mass. 558, 85 N. E. and proposed action of board of registration 858; Commonwealth v. Houtenbrink, 235 in medicine.
Mass. 320, 126 N. E. 669; Commonwealth v. Every presumption is made in favor of Zimmerman, 221 Mass. 184, 108 N. E. 893, regularity and fairness of methods of proce. Ann. Cas. 1916A, 858; Commonwealth v. De dure and proposed action of board of registra- Lon, 219 Mass. 217, 106 N. E. 846; Commontion in medicine, in hearing to revoke registra- wealth v. Lindsey, 223 Mass. 392, 111 N. D. tion of practitioner.
869; Commonwealth v. Dragon, 239 Mass. 5. Physicians and surgeons Om (2)—Assist. 519, 132 N. E. 356. Its constitutionality, al.
ing unregistered person ground for revoca- though decided or assumed in all of those tion of registration.
decisions, was examined at large in Law. Assisting unregistered person in practicing rence v. Board of Registration in Medicine, medicine is sufficient ground for revocation or 239 Mass. 424, 132 N. E. 174. After a decancellation of registration.
tailed analysis of the statute and a review 6. Constitutional law 38-Incidental means of many authorities, its constitutionality was for enforcing valid statute violate no con- upheld. It would be vain repetition to go stitutional rights.
over that ground again. No argument not Incidental means for enforcing and giving then considered has now been addressed to effect to valid statute violate no constitutional us. Further reflection affords no ground to rights.
doubt the soundness of that adjudication. It Report from Superior Court, Hampden
is affirmed. It is supported in principle by County ; A. R. Weed, Judge.
Douglas v. Noble, 261 U. S. 165, 43 S. Ct. 303,
67 L. Ed. 590, and Lehmann v. State Board, Suit by George Healy Davis against Sam- 263 U. S. 394, 44 S. Ct. 128, 68 L. Ed. 354, uel H. Calderwood and others, to enjoin de- both decided since. fendants, as the Board of Registration in
 The statute requires a hearing before Medicine, from proceeding with hearing on
a public board, at which the plaintiff may notice to show cause why plaintiff's registra- be represented by counsel and call witnesses, tion as practitioner of medicine should not be with provision for further hearing in court revoked. Case was reported on bill and or- and for revision and reversal of the finding der for interlocutory decree. Bill dismissed. of the board if justice demands such ac
A. A. Tyler, of Springfield, for plaintiff. tion. Every constitutional right is protect
J. R. Benton, Atty. Gen., and A. Chesley ed. In re Stevens, 228 Mass. 368, 117 N. E. York, Asst. Atty. Gen., for defendants.
588. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes