321 Mass. 512 | Mass. | 1947
This is a suit to recover a broker’s commission.
The findings may be summarized as follows: Irving C. Ruby (hereinafter called the defendant) during the times here material owned all of the capital stock of the Brookline Liquor Mart, Inc. (hereinafter called the corporation), which owned and operated a so called package store at No. 1354 Commonwealth Avenue, Boston. Some of the shares stood in the names of others who held them “as straws” for the defendant. On or about December 10, 1944, the plaintiff, who is a real estate and business broker, asked the defendant if he wished to sell “his business.” The defendant told him that “he would sell the business for $35,000 including all the fixtures, and would take ‘dollar for dollar’ for the liquors, wines and cordials, the price being based on
Shortly thereafter, the plaintiff brought to the defendant three men (hereinafter called the customers) who, after looking over the store, fixtures and merchandise, “were ready, able and willing to accept . . . [the defendant’s] proposition to buy the business for $35,000 plus the merchandise at cost, and to take a ten years’ lease of the premises which . . . [the defendant] told them he could obtain.”
The judge concluded “that while . . . [the plaintiff] produced customers ready, able and willing to purchase the business on the terms of . . . [the defendant], their acceptance of . . . [the defendant’s] proposition, made through . . . [the plaintiff] and later by . . . [the defendant] himself, was a qualified acceptance, dependent upon arrangement of details to be made by the attorneys. In concluding a transaction involving perhaps some $70,000, the parties intended, before being bound, to put the matter in final form through some written agreement provided by their respective attorneys.” The judge ruled that, inasmuch
The decree entered in the court below was right.
If the finding of the judge that the customers produced by the plaintiff “were ready, able and willing to accept . . . [the defendant’s] proposition to buy the business for $35,000 plus the merchandise at cost” stood alone, the plaintiff should prevail. To recover a commission a broker ordinarily is required to prove only that he produced a customer who was able, ready and willing to purchase on the seller’s terms. Buono v. Cody, 251 Mass. 286, 290. Lieberman v. Cohn, 288 Mass. 327. Maher v. Haycock, 301 Mass. 594, 595. Barsky v. Hansen, 311 Mass. 14, 16. Magann v. Lawler Bros. Theatre Co. 312 Mass. 317. Church v. Lawyers Mortgage Investment Corp. of Boston, 315 Mass. 1, 8. His right to a commission is not affected by the failure of the customer and seller to enter into a binding agreement, or by the refusal of the seller to carry out the transaction. Fitzpatrick v. Gilson, 176 Mass. 477, 478-479. Cohen v. Ames, 205 Mass. 186, 188. Green v. Levenson, 241 Mass. 223, 224. Lieberman v. Cohn, 288 Mass. 327, 330. Sherman v. Briggs Realty Co. 310 Mass. 408, 413.
But the finding to which we have just referred must be read in conjunction with the subsequent finding to the effect that the customers’ acceptance of the defendant’s offer was a qualified one, dependent upon the parties settling the details of the bargain and incorporating them in a formal agreement. The latter finding, we think, is not to be treated as inconsistent with the earlier finding and must be construed as controlling it. Inasmuch as the acceptance of the defendant’s offer was qualified, it cannot be said that the plaintiff had produced a customer ready, able and willing to purchase the business on the defendant’s terms. And it appears that the negotiations remained in this state down to the time of the revocation of the plaintiff’s authority by the defendant. The plaintiff, therefore, has failed to establish his right to a commission. Doten v. Chase, 237 Mass.
A firmed with costs.
The case is on the equity side of the court because the plaintiff sought to reach and apply the shares of stock owned by the defendant Irving C. Ruby in the Brookline Liquor Mart, Inc., also a defendant.
The title to the real estate where the package store was located was in the defendant’s wife. The corporation occupied the premises under a ten year lease which in December, 1944, had approximately nine years to run.