CHARLES E. MAXWELL & another vs. MASSACHUSETTS TITLE INSURANCE COMPANY.

RUGG, J. This case comes before us upon a petition to establish exceptions. The first point to be decided relates to practice in a jury trial. From the report of the commissioner it appears that at the conclusion of the evidence the defendant's counsel handed twenty-four requests for rulings to the presiding judge, [Note p199] who refused to give the first (to which ruling the defendant thereupon excepted), and who did not read through the others, but, glancing them over cursorily, said to the counsel for defendant that he might read them to the jury during his argument, and the court would pass on them as the counsel went along. The counsel declined to do this, stating his reasons. Whereupon the presiding judge said "Very well." Nothing more was said at that time. The requests were not read either by the counsel in argument or by the judge, and the latter in his charge did not deal with them specifically. At the close of the charge defendant's counsel asked to have his exceptions saved to the judge's refusal to give the requests insisted upon. The judge refused to allow exceptions on the ground that he had offered to permit the counsel to read the requests to the jury, and he would pass upon them as the argument proceeded. The defendant took no further exception, but did not intend to waive his right to save an exception and did not say nor think that he had made such a waiver. There was a misunderstanding between the counsel and the judge, the latter thinking that the counsel would rather forego the requests than read them to the jury as he had suggested.

This narration shows that the counsel for the defendant did enough to preserve his exceptions. The number of requests presented was not as matter of law excessive, and their character does not appear to have been impertinent to the evidence and issues. If a presiding judge can ever be excused for these or other reasons from careful examination of prayers for instructions seasonably presented, as to which no opinion is now expressed, the circumstances in this case afford no justification for such action. The suggestion that the counsel should read the prayers and the judge comment on them as he went along does not appear to have been made as a ruling of law or direction as to the conduct of the trial. This is to be inferred both from its

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unusual nature and the response of the judge to the protest of the counsel against complying with it. It is only to an "opinion, ruling, direction or judgment" that an exception can be taken. R. L. c. 173, § 106. Rule 45 of Superior Court. Hence it was not necessary to save an exception to what appears now to be, and to have been treated at the moment as, merely an intimation. It was not a matter as to which the judge had discretionary powers. A magistrate presiding over a jury trial ought himself to state in his charge comprehensively, plainly and forcibly all the governing principles of law as to the issues raised by the pleadings and supported by evidence, so that the jury may clearly understand their duty and be enabled to perform it intelligently. Whitney v. Wellesley & Boston Street Railway, 197 Mass. 495. Plummer v. Boston Elevated Railway, 198 Mass. 499, 514. It is incompatible with the orderly and efficient conduct of jury trials for this vitally important function of the judicial office to be performed by a running commentary upon requests read by an advocate in the cause. It is not within the authority of a presiding judge to put counsel to an election between presenting his requests in this form or waiving them. The defendant's counsel properly understood that he was not required to act by exception respecting his prayers, having seasonably presented them, until the end of the charge, when for the first time he knew or had reason to believe that the judge did not intend to deal with them. He then duly excepted to the refusal to give them. In the absence of conduct, silence or statement calculated to mislead the judge, it was not necessary for him further to except to the reasons then given by the judge for his refusal to allow the exceptions. The truth of the defendant's exceptions is established.

The action is by two alleged real estate brokers to recover the value of their services in negotiating a loan upon real estate belonging to the petitioner, the defendant in the original action, who will be referred to hereafter in this opinion as the defendant. The defendant contended that it had no contract of employment with the plaintiffs, and that whatever they did was in their own interest.

The defendant first requested a ruling that on all the evidence the plaintiffs could not recover. It was not contended that there

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was any express contract of employment or for compensation. The plaintiffs, having learned that the defendant had become the owner of certain property by foreclosure, sought out its president and had conversation with him. The inference from all the reported testimony is strong that there was no employment even by implication, but it is not quite so plain as to warrant a ruling to that effect as matter of law. One of the plaintiffs talked with the president of the defendant as to a sale, which came to naught, but he was given a price on the property and a detailed description and photographs of it, and he then introduced the other plaintiff. At an interview between the three it was stated that the plaintiffs had a "deal" or "trade on" whereby they hoped to be able to get for the defendant its money out of the property. Arrangements were made for some representative of the defendant to be upon the property on several different occasions for the purpose of showing it. The plaintiffs appear to have employed two other real estate brokers to assist them. Later a mortgage was negotiated upon the estate of which the defendant received the benefit. The causal connection of the plaintiffs with this result, although seriously controverted by evidence, seems to have been decided in their favor by the verdict. The case is close, but these circumstances taken together cannot be said to fail utterly to support the conclusion that the defendant knew that the plaintiffs were undertaking to get for it the price it had fixed for the property, and that it was willing to take advantage of their efforts, and that reasonable compensation in this regard ought fairly to have been expected to be paid by the defendant. Hall v. Grace, 179 Mass. 400.

The plaintiff Maxwell testified that in his single conversation with the president of the defendant he said "We would put up some sort of a deal" or "trade" by which the price fixed by it could be obtained. There is at least ground for argument that these phrases are wholly inapplicable to the simple transaction of negotiating a loan, and implied, in the connection in which they were used, a purpose to acquire a personal and financial interest in the transaction. The plaintiff Leavitt testified in substance that he expected to get a mortgage and with the money thus obtained to buy the property from the defendant, and that he could make for himself the difference between the

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amount of the mortgage and the price for which he could buy the land of the defendant. Upon this aspect of the evidence the defendant asked for an instruction to the effect that if it was the intention of the plaintiffs, in what they did in getting the price of the property from the defendant and undertaking to procure a loan, to buy in their own interest and at the same time mortgage it for a larger amount, and thus profit by the difference between the two sums, they were not acting as brokers for the defendant, but for themselves as principals, and were not entitled to recover, and further that the relations of broker and purchaser were incompatible, and if the plaintiffs intended to become purchasers, they could not at the same time be brokers for the defendant with the duty incumbent upon them as such to care for its interests to the best of their ability. These were correct statements of law and applicable to the evidence. A broker cannot purchase for his own use the property entrusted to him to sell. His fiduciary obligation requires him to procure the highest price obtainable, while his personal interest as buyer is directly antagonistic to that of his principal. The attempt of a broker to thus serve two masters is a fraud upon his employer, and is against public policy and deprives him of any right to a commission. Smith v. Townsend, 109 Mass. 500. Alvord v. Cook, 174 Mass. 120, 126. Quinn v. Burton, 195 Mass. 277. Sullivan v. Tufts, 203 Mass. 155.

The prayer to the effect that upon the undisputed evidence the plaintiffs stood in the position of a prospective purchaser and not of broker, and hence could not recover was properly refused. The admission of Leavitt on the witness stand above stated, that this was in substance the nature of the transaction, would have made it necessary to give the ruling, if he was the only plaintiff. There was testimony that no general partnership existed between the two plaintiffs, but they were at the least joint participants in the alleged contract on which recovery is sought, and their powers as to admissions respecting its subject matter were as extensive as those of partners. Derickson v. Whitney, 6 Gray 248. Admissions by one partner or one of two such joint contractors as the plaintiffs were, even after the termination between themselves of their relation, are competent evidence against his associate. Whatever may be their weight

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in a case like the present with a tribunal whose duty it is to determine the facts, they are not as matter of law conclusive upon those partners or joint contractors who did not make or assent to them. Martin v. Root, 17 Mass. 222, 227. Vinal v. Burrill, 16 Pick. 401. Cady v. Shepherd, 11 Pick. 400. Bridge v. Gray, 14 Pick. 55, 61. Ide v. Ingraham, 5 Gray 106. Dennie v. Williams, 135 Mass. 28. Buxton v. Edwards, 134 Mass. 567, 579. Singer Manuf. Co. v. Reynolds, 168 Mass. 588, 590. The meagre testimony of Maxwell did not quite amount to a plain admission like that of his joint adventurer.

Petition for establishment of exceptions allowed; exceptions sustained.

S. R. Wrightington, for the defendant.

C. W. Bond, (H. E. Perkins with him,) for the plaintiffs.