MYRA HARVEY vs. THE FIRST NATIONAL BANK OF BOSTON.

PIERCE, J. This is an action of contract to recover compensation for alleged services in procuring a purchaser for certain real estate owned by the defendant as executor under the will of Lucian J. Fosdick) late of Boston, Massachusetts, deceased. The answer is a general denial and payment. At the close of the evidence the defendant presented and the judge denied a motion for a directed verdict. The jury thereafter found for the plaintiff and the case is before us on exceptions to the denial of the defendant's motion.

All evidence material to the single issue as thus raised is contained in the bill of exceptions. On this evidence the facts, as they warrantably could have been found by the jury, are in substance as follow. At all times material to the issue presented the defendant was executor of the will of one Lucian J. Fosdick and under the terms of that will had full power to dispose of and sell the real estate. The

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property here involved, which the defendant was desirous of selling, consisted of fourteen parcels of land with buildings thereon. The plaintiff had charge of the property for Fosdick for about eight years of his life, and after his death for the defendant for fifteen months. Soon after Fosdick's death, the plaintiff procured a customer for the part of the property on Linden Street. The price offered was "thought reasonable," the sale was consummated, the defendant "delivering the deed and receiving the consideration and paying . . . [the plaintiff] a commission on the sale of that property."

Henry N. Andrews testified, and upon his testimony the jury could find, that for twelve years Andrews had been associated with the defendant as a trust officer; that his duties were the general duties incident to the administration of estates and trusts; that the duties which he performed under trust estates depended upon the terms of the will under which the defendant operated; that these included all the various details incident to administration of estates, administration of trusts, voluntary trusts, life insurance trusts and fiduciary matters in general; that in connection with these duties he had certain real estate under his control which included the property here in question. On his testimony the jury warrantably could further find that "where real estate was being sold the witness, on behalf of the trustee, engaged brokers." On July 28, 1927, Andrews as "trust officer" sent the plaintiff a letter authorizing her to make sale of the Linden Street property, which, as above stated, was subsequently deeded by the defendant to her customer. After that sale Andrews had a conversation with the plaintiff in reference to selling the remainder of the property, stating that "we wanted to dispose of the property"; and "there was talk about her getting a customer." On his testimony the jury could further find "that there was no question but that his department was perfectly willing that Mrs. Harvey [the plaintiff] should employ the assistance of others in negotiating the sale of the properties"; that "she was to bring offers to the bank"; and "that there was no question that in the event of the securing of a customer,

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he expected to make payment of a commission to Mrs. Harvey."

The testimony of the plaintiff and that of Edward G. Williams, who had become associated with her in the marketing of this property, warranted the further finding by the jury that in the fall of 1927 the plaintiff secured an offer for the property and forwarded a copy of the offer to Andrews by letter dated December 20, 1927; that Andrews informed her and Williams, who had told him of the terms of the offer, that the offer was unsatisfactory with respect to the total purchase price and the amount of the initial cash payment, but that he would sell the Fosdick property for $145,000, of which $20,000 was to be paid in cash and the balance of $125,000 was to be secured by a mortgage running for five years at six per cent payable $5,000 a year; that thereafter she obtained a customer, one Thomas Matthews, who made an offer in compliance with these terms; that the offer was communicated by Williams to Andrews, who then for the first time stated that he must submit the proposition to Mrs. Fosdick, the widow of the testator, and to her attorney; and that the plaintiff and Williams were later informed that Mrs. Fosdick had decided to take the property herself. Matthews testified that he made the offer and was ready, able and willing to purchase the property on the terms proposed, which he stated. No evidence is offered to prove, nor is it contended, that Matthews did not make the offer in the terms of the defendant's conditions, or that he was not able and willing to abide by his acceptance of the alleged terms of sale; and there is no evidence that the authority of the plaintiff to offer the property for sale on the prescribed terms was withdrawn before Matthews was procured as a customer and his offer communicated to the defendant.

We consider the argument of the defendant in support of its motion in the order the points are presented in its brief, "(a) There is no evidence of a consummated contract between the plaintiff and the defendant." Assuming Andrews was authorized to procure the services of a broker to sell the property, and assuming the defendant was willing

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the plaintiff should employ Williams as an associate in the marketing of the property, the evidence is plenary that Andrews on behalf of the defendant authorized the plaintiff or her associate to procure a customer for the property upon the terms prescribed by Andrews, and agreed to pay her a commission in the event of her securing a customer who was ready, willing and able to perform; and it is inescapable that the plaintiff did secure such a customer and did inform the defendant of that fact before her authority was in any degree revoked. Casey v. Fritz Carlton Hotel Co. 254 Mass. 223, 228.

"(b) The plaintiff has not proved that she dealt with an agent of the defendant or that the alleged agent acted within the scope of his authority in making the alleged contract." It is plain the evidence of Andrews as to the nature of his duties as a trust officer of the defendant was admissible, and, admitted, was sufficient to establish his agency to sell this property, employ brokers, and agree that compensation should be paid if a purchaser for the property were secured. Gould v. Norfolk Lead Co. 9 Cush. 338, 342.

"(c) The defendant is a national banking corporation organized under the laws of the United States and the alleged contract was beyond the powers conferred upon it by statute." The defendant acting as executor is assumed to have exercised the right to act as executor with the permit of the Federal Reserve Board. 40 U. S. Sts. at Large, 968-969, § 2, amending section 11 (k) of the Federal Reserve Act, 38 U. S. Sts. at Large, 262. As such executor it was clothed with all powers which were essential to the performance of its duties under the will of its testator and to the final administration of the estate. It is obvious the defendant must exercise its duties and powers through agents and servants, and that in the sale of this property it had the incidental right to procure a purchaser through the aid of brokers, and to pay for such service.

The fact that the terms of sale of the property contemplated that the defendant should take back a mortgage in excess of fifty per cent of the actual value of the property

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did not make the contract with the plaintiff illegal in that it would be in violation of 39 U. S. Sts. at Large, 754, which, as amended by Act of Congress of February 25, 1927, c. 191, § 16 (44 U. S. Sts. at Large, 1232), reads in part: "Any national banking association may make loans secured by first lien upon improved real estate .... The amount of any such loan shall not exceed 50 per centum of the actual value of the real estate offered for security . . . ." On the facts here disclosed the statute has no application to credits given for property sold by a national bank upon which a mortgage is taken back by way of security.

Exceptions overruled.