329 Mass. 398 | Mass. | 1952
This is an action of contract to recover for services in procuring a customer for certain real estate of the defendant. The declaration was in two counts, the first count alleging an express contract to pay the plaintiff a commission of 5% of the sale price. The jury found for the defendant on that count so we need not consider the exceptions of the defendant in so far as they relate to it. The second count was upon an account annexed involving an implied contract.
Upon the evidence most favorable to the plaintiff the jury could reasonably find that at some time the defendant offered to sell the property to certain customers of the plain
The defendant contends that, because there was no evidence as to the fair value of the services of the plaintiff referred to in count 2, the motion for a directed verdict for the defendant should have been allowed. He relies upon what was said in Driscoll v. Bunar, 328 Mass. 398, 403-404. In that case there was no evidence that the defendant promised to pay any percentage of the sale price and there was no evidence as to what would be a fair and reasonable charge for the plaintiff’s services. It was held to be error to submit the question of substantial damages to the jury, and a new trial was ordered on damages only.
While it is true that in the instant action there was no direct evidence of the fair value of the plaintiff’s services, there was evidence in our opinion that the plaintiff was to receive a commission of 5% of the sale price paid by Wong Shew less a credit of $100 paid to the plaintiff by the defendant. There was evidence that the defendant agreed to pay the plaintiff a commission of 5% if the first transaction went through. When that deal failed the defendant urged the plaintiff to continue his efforts and as a result he procured Wong Shew who paid $19,000 for the property. When the defendant told the plaintiff that he would take care of him, the jury had a right reasonably to infer that the defendant meant that he would take care of the plaintiff on the same
Exceptions overruled.
“And the plaintiff says that the defendant owes him the sum of eight hundred fifty ($850.00) dollars according to the account hereto annexed and marked ‘A’ together with interest thereon from October 7, 1949. . . .
Alwin A. Klauer
To Ernest A. Carlson, Dr. October 7, 1949
1. Services rendered in selling premises at 8 Midland Avenue, Newton, 5% of $19,000 . $950.00
2. Received on account . 100.00
3. Balance due ....... $850.00
4. Interest from October 7, 1949 . . . .