
    Joseph L. Murphy vs. Helen O’Rourke.
    June 12, 1968.
   In this action of contract in two counts, both for the same cause of action (a real estate broker’s commission), the judge directed verdicts for the defendant. Count 1 alleged an express contract; count 2 was in quantum meruit. There was no error in directing the verdict on the opening in count 2. The allegation was that the plaintiff undertook to sell the defendant’s property whereas the opening showed that no sale had been effected and that no binding agreement to sell had been made. Simon v. Lettiere, 257 Mass. 563, 570. See Cheng v. Chin Wai Yip, 339 Mass. 173,175. Burns v. Barry, 353 Mass. 115,117. On count 1 the verdict was directed when the plaintiff offered no evidence following the exclusion of testimony of an attorney called as a witness by the plaintiff regarding a conversation between the attorney and the defendant. The plaintiff’s offer of proof on the excluded question was not a delineation of an answer which the witness was competent to make but rather was a statement framed in the language of count 1 giving the legal effect of the conversation. See Foley v. Hotel Touraine Co. 326 Mass. 742, 745. It is unnecessary to discuss whether the excluded matter was within the attorney-client privilege.

Joseph J. Hurley for the plaintiff.

Manuel Katz for the defendant.

Exceptions overruled.  