174 Mass. 408 | Mass. | 1899
This is an action by a broker to recover his commission upon an exchange of land. There is no question that the defendant employed the plaintiff or that he made a written agreement for an exchange which was procured by the plaintiff, but it turned out that the other party to the exchange did not own all the land which he agreed to convey, and -was not able to make a title at the appointed time. There was evidence that the defendant relied wholly on the plaintiff, and, although this was contradicted, that the plaintiff told the defendant that Corbin, the other party, owned the land to be conveyed by him, and was all right in the way of pecuniary responsibility. It is certain that Corbin’s agreement, which was dated January 6, 1897, and was to be performed on or before January 15, 1897, and which was drawn by the plaintiff, ran that Corbin “ agrees to deed ” the land which he was to exchange. This language on its face conveys the idea that the title is to come from him.
The case was tried before a judge without a jury, and the judge said: “I do not think that it is enough, in order to enable
In view of the state of the evidence we do not regard this as an abstract, unqualified ruling that in all cases, in order to entitle a broker to his commission, the contract of sale or exchange must be one which could be enforced specifically; we construe it rather as a ruling on the specific facts which the judge expressly or probably found. We think that the judge only meant to say that a broker does not earn his commission by bringing a person to his employer who assumes to contract as owner, when in fact he is not owner, as the broker knows and the employer does not know, and who within the few days allowed for performance turns out unable to perform his contract and irresponsible. See Butler v. Baker, 17 R. I. 582; Greusel v. Dean, 98 Iowa, 405; 4 Am. & Eng. Encyc. of Law, (2d ed.) 972—975, sub v. “ Brokers.” We regard this proposition as correct, and as consistent with the well settled law ■ that, in general, commissions are earned when a binding contract of sale is made. Rice v. Mayo, 107 Mass. 550. Ward v. Cobb, 148 Mass. 518, 521.
Exceptions overruled.