The plaintiff having procured the first mortgage loan had earned his commission if the contract declared on was
It is the defendant’s contention that the parties understood that the contract was not to be binding unless the plaintiff procured a second loan or. mortgage on the property, which has not been done, and this defence was open under the answer of a general denial. West End Manuf Co. v. P. R. Warren Co. 198 Mass. 320.
■ The offer of proof as stated by the counsel did not tend to modify or vary the terms of the contract, but the evidence, if believed by the jury, showed that the agreement relied on never was made. Young v. Hayes, 212 Mass. 525, 531, 532, and cases cited.
The ruling excluding the testimony having been erroneous, the verdict ordered for the plaintiff must be set aside.
Exceptions sustained.