HY HURWITZ vs. PARKWAY COUNTRY CLUB, INC.

WILLIAMS, J. This is an action of contract in which the plaintiff is a sports writer for a well known Boston daily newspaper and the defendant a corporation which owns and operates a golf club in Canton known as the Blue Hills Country Club. There was evidence that in the spring of 1955, the plaintiff told one Sidney Covich, vice-president of the defendant, that he could obtain or help place the 1956 Professional Golfing Championship of America at a local club. Covich replied that he would discuss the matter with his "partners" and requested the plaintiff to obtain forms of contracts relating to the tournament. The plaintiff obtained the forms and delivered them to Covich. In the summer of 1955, the plaintiff attended a meeting of the club at which Covich, Joseph Corkin, president of the club, and his two brothers were present. The Corkin brothers were introduced as "partners" of Covich and officers of the defendant corporation. The officers agreed to take on the tournament. The plaintiff said "that since the defendant club was not owned by the members themselves, it would be unlikely that there would be a hundred percent co”peration from the membership, and that there would be a great work load." Joseph Corkin said, "Well, you're the guy getting the tournament, you do the work." The plaintiff replied, "I'll be glad to do my share. Of course, I am going to put some time in this and I expect to get something out of it." The Corkins and Covich replied, "Don't worry. You'll be well taken care of, extra so, in the event if the tournament made a profit." The plaintiff arranged for the tournament, was named tournament director, and was given an office in the Boston Chamber of Commerce in July. From August, 1955, until the tournament in July, 1956, he made necessary arrangements for the tournament and had fifty to sixty conferences with representatives of the defendant. In the late winter or early spring of 1956, the plaintiff told Covich that he would like to receive a $5,000 guaranty, plus a percentage of profits which might accrue as a result of the tournament. Covich said it was all right with him if it was all right with the Corkins. The plaintiff saw the Corkins

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and also told them what he wanted. Joseph Corkin said, "we are going to take good care of you. You don't have to worry about your money. You don't need any five thousand dollars or any guarantee." The plaintiff said, "well, this has been an understanding for sometime now, but I'd like to get something in writing." Joseph Corkin called in a man who had worked for the Corkins for ten to twelve years and asked him if he ever had a contract in writing from the Corkins. The man said "no" and Corkin asked the plaintiff if that answer was not good enough for him. The plaintiff said it was and did not obtain anything in writing to state that his guaranty was $5,000 with an additional percentage of the profits. In May or June, 1956, the plaintiff requested money from the defendant "in advance for my work in the tournament." He received $1,000 and asked, "Shall I regard this as a down payment on the guarantee or the percentage? How shall this be?" to which the reply was "Don't worry. We'll take care of it and fix it all up when the tournament is over."

After the tournament, he sent a bill to the defendant for $4,000. At a conference with Covich about getting the money Covich told him, "Well, you did a wonderful job," and told him to see the Corkins. Joseph Corkin denied owing him any money and said "they wanted to make a settlement with me." The defendant asked that the answer be struck and the judge ruled, "He may have the talk, not as respects the settlement, any admissions that might have been made are admissible." The plaintiff answered that Corkin said, "Why don't we give you another thousand dollars and let's call this thing off and I said, `I am owed four thousand dollars.'" To the refusal of the court to strike this answer out, the defendant excepted. After a short recess, the judge told the jury: "I allowed some evidence relative to some talk about payments of amounts between this man and one of the Corkins, defendants. It was error to admit it. I now strike it. In other words, it is just as if you never heard it. I had an idea it might have been admissible on one phase. I find, on further consideration,

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that it was not so admissible." In procuring and staging the tournament, the plaintiff spent about 200 days from July, 1955, to July, 1956. On some of these days he spent two hours and on other days twenty hours. As of November 21, 1960, he had not been paid. Covich testified that the plaintiff was to get $1,000 for his work and a free family membership at the club.

In his action of contract the plaintiff joined the corporation, Alvan Corkin, Herbert Corkin, Joseph Corkin, and Sidney Covich as defendants. At the trial, he waived all counts of his declaration except 1 and 2 which were against the corporation. In count 1 the plaintiff alleged that the defendant contracted to pay him a minimum sum of $5,000. Count 2 was on an account annexed, item 1 of the account being for $5,000 without further description. The plaintiff specified (1) that the contract alleged in count 1 was entered into in the spring or early summer of 1955; (2) the contract alleged in count 1 was oral; (3) the plaintiff rendered the services alleged by him in count 2 between June, 1955, and July 20, 1956. The defendant did not move for a directed verdict or submit requests for instructions on either count. The jury returned a general verdict for the plaintiff in the amount of $4,580.

The defendant excepted to the admission of evidence respecting the talk about settlement and to the following portion of the instructions to the jury: "Did they make an agreement or a bargain or a contract whereby Hurwitz was to do certain work and for that work receive a minimum of five thousand dollars? Or did they make an agreement or a contract whereby Hurwitz was to do certain work and for that work receive one thousand dollars? That is the real issue in this case, because nowhere has it been contended that whatever Hurwitz was hired to do, that he failed to do. In other words, the defendant does not set up a breach of the contract on the part of Hurwitz. They do not come into court and say, `Well, he was supposed to do this and that and thus and so, but he didn't do it and, therefore, he is not entitled to his money.' That isn't the claim here.

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The claim on behalf of the defendant is that the agreement was to have Mr. Hurwitz do certain work in connection with the promotional activities of this P.G.A. National Tournament and for that he would receive a certain amount of dollars, as they say, one thousand dollars."

It does not appear that there was any evidence from which it could be found that the plaintiff and corporate defendant entered into a contract as alleged by the plaintiff in count 1 either in the spring or early summer of 1955 as specified or at any other time. There was evidence that the plaintiff was engaged in the early summer to obtain the 1956 professional golfers tournament for the country club and it could be found that it was expected both by the defendant and the plaintiff that he would be paid for his services. No price was fixed and the only compensation to the plaintiff for which the corporation became liable was that measured by the fair and reasonable worth of the plaintiff's services. Day v. Caton, 119 Mass. 513, 515. Silver v. Graves, 210 Mass. 26, 29-30. Evers v. Gilfoil, 247 Mass. 219, 223-224. Bridges-Wilson Corp. v. University Contracting Co. 314 Mass. 257, 259-260. Medlinsky v. Premium Cut Beef Co. 317 Mass. 25, 31.

In the late winter or early spring of 1956, after the plaintiff had devoted time to the tournament project, he took up with the corporate officials the matter of a guaranty of $5,000 with a percentage of future profits. The talk related to providing the plaintiff with security for the compensation he would be entitled to under his existing contract of employment. It could not be construed as an offer or acceptance of an offer to enter into a new contract. At that time or shortly after, the plaintiff was paid $1,000. We think the judge erred in charging the jury that the question for their decision was whether the contract of the parties provided for payment of compensation in the amount of $5,000 or in the amount of $1,000. In our opinion, there was no evidence warranting the finding of a contract for either amount.

The plaintiff was entitled to recover the fair value of his services under his second count. Manilla v. Houghton,

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154 Mass. 465, 467. Chandler v. Baker, 191 Mass. 579, 583. Walker v. Russell, 240 Mass. 386, 393. Altman v. Goodman, 255 Mass. 41, 43-44. Humes v. Barron, 263 Mass. 583, 584-585. Donahue v. Dal, Inc. 314 Mass. 460, 461-462. Clayton v. Modern Shrinking & Refinishing Co. 341 Mass. 731, 732. He did not, however, offer any evidence of their value, and they were of such a special nature that a jury could not from their ordinary knowledge and experience determine what they were reasonably worth. Driscoll v. Bunar, 328 Mass. 398, 403. Compare Thibault v. DeVio, 318 Mass. 605, 606-607, and cases cited.

We think that the verdict of $4,580 for the plaintiff ought not to stand as to either count. The evidence did not support a verdict for the plaintiff on count 1 or warrant a verdict for the plaintiff on count 2 for more than nominal damages. While the defendant failed to move for a directed verdict on count 1 (see Rule 71 of the Superior Court [1954]), and to request an appropriate instruction as to count 2, the judge had on his own motion the power and duty to make such rulings as the law required. Field v. Hamm, 254 Mass. 268, 271. The instructions to which the defendant excepted did not accurately present to the jury the issues which they properly could consider. As a consequence the verdict returned was one not warranted by the evidence on either count. The defendant's exception to the charge raises the same issues which ordinarily would be presented by motion and request. We think that there should be a new trial. It is unnecessary to discuss the exceptions to the rulings on evidence as they relate to a situation which is unlikely to reoccur.

Exceptions sustained.