1. We are of opinion that the judge was right in refusing to direct a verdict for the defendant.
The jury were warranted in finding that the defendant employed the plaintiff to find a purchaser for his liquor business and promised to pay him a commission equal to five per cent on the purchase money. They were further warranted in finding that the plaintiff gave to one Casey, vice president of the Massachusetts Breweries Company, the name of the defendant’s liquor business and of two others, knowing that the company was in the habit of advancing the money necessary to make a purchase of a liquor business to one in whom the company had confidence, who would buy ale of them; that Casey brought the defendant’s place to the attention of Silva; and that the purchase by Silva was made in consequence, that is to say, the company advanced the money to Silva to buy the defendant’s place and furnished a guarantor on the lease, and Silva bought his ale of the company.
Casey testified that in what he did he was acting for his company and not as the agent of the plaintiff. Casey was the plaintiff’s witness; there was no evidence to contradict this, and it must be taken to have been the fact.
2. The next objection taken by the defendant is that he authorized the plaintiff to find a customer for $10,000, and all that the customer found by the plaintiff paid was $8,950 less a rebate received from the city of Boston for the unexpired term, amounting to $900. French v. McKay, 181 Mass. 485, is decisive against that contention.
The defendant relies on Crowninshield v. Foster, 169 Mass. 237, in this connection. That was a case of competing brokers, where the plaintiff failed to sell and the other broker succeeded in selling. In that connection the fact that the offer which was accepted was substantially different from that which was rejected is important on the question whether the plaintiff was the efficient cause of the sale. In the case at bar Casey was not a broker and did not claim a commission.
3. The next exception is that taken to the refusal to give the fourteenth and sixteenth rulings asked for.
The defendant’s argument here is that it was Casey’s interest to get the place as cheaply as possible because his company was to advance the purchase money; that under Gleason v. Nelson, 162 Mass. 245, the plaintiff cannot recover a commission unless Casey acted as the plaintiff’s agent, and consequently that there was a conflict of interest within the rule of Rice v. Wood, 113 Mass. 133.
But as we have already said, we are of opinion that the plaintiff can recover his commission, although Casey was not (and on the evidence he was not) acting as the plaintiff’s agent.
Exceptions overruled.