The plaintiff, a real estate broker, sues for a commission, and sets up a breach of the following alleged exclusive sale agreement: “June 16, 1947, Exclusive sale of property. #26 Prospect St., West Bridgewater Mass., to my agent Florence M. Bartlett. We are asking $12,000 (will take as low as $11,000). She is tо have exclusive sale of same — for 90 days. [Sgd.] Phyllis L. Keith.” The plaintiff’s only exception is to the granting of the defendant’s motion for a directed verdict.
The jury could have found these facts from the tеstimony of the plaintiff, the only witness. On June 16, 1947, in a conversation with the defendant as to the sale of thе de *266 fendant’s property the plaintiff said that she would list it if she received “an exclusive sale” fоr ninety days, but not otherwise. The writing quoted above was then made out by the plaintiff and signed by the defendant. The plaintiff advertised the property, “probably fifty” telephone calls resulted, and “she worked on the job.” She had the key to the house, and talked with members of a McDonald family. In the lattеr part of July she told the defendant that she had to go away for a week or ten days. The defendant answered, “All right.” The plaintiff later called the defendant to report her return and to say that she had several interested customers. The defendant said, “Oh, don’t sell it again. I have already sоld it.” The plaintiff asked, “Did you sell it to one of the McDonald family?” The defendant replied, “I sold it to my сousin. We tried every way to get you, and we couldn’t reach you.”
The declaration allegеs that the defendant “gave an order or contract” to the plaintiff to sell the propеrty, “making a contract at the time giving the plaintiff the exclusive right to sell” for ninety days; that the plaintiff advertised the property, and consulted with prospective purchasers; that in violation of “the said contract” the defendant sold the property.for $10,000 to a buyer attracted by the рlaintiff’s advertisements; and that the defendant owes the plaintiff a commission of five per cent on that sum, “as was agreed upon.”
The allegations of a sale for $10,000, or to a buyer in effeсt procured by the plaintiff, or of an agreement to pay a commission of a definite рer cent are not sustained by the testimony. There is no count on a quantum meruit. See
Altman
v.
Goodman,
The question for decision is whether there was a contract entitling the plaintiff on the evidenсe to recover nominal
*267
damages because of a sale by the defendant herself tо a customer not procured by the plaintiff. The effect of giving an exclusive right of sale has nоt been adjudicated in this Commonwealth. In
Des Rivieres
v.
Sullivan,
We think that the
Des Rivieres
case is controlling here. In our opinion the defendant’s promise was just as much unilateral and equally without consideratiоn until the performance of the condition, as though the broker had been given an exclusive аgency rather than an exclusive right of sale. Here the condition was at least the procuring of a customer who was able, willing, and ready to buy on the owner’s terms. See
Walker
v.
Russell,
There was no fraudulent revocation, and once the question of consideration is analyzed, this case falls within the usual principles of brokerage cases.
Cadigan
v.
Crabtree,
Exceptions overruled.