255 Mass. 459 | Mass. | 1926
The plaintiff alleges that the defendants made an agreement with him whereby the plaintiff was to secure a customer ready, willing and able to purchase for $29,000 real estate of the defendants on Gorham Street in Lowell; and that they were to pay him $1,000 upon his producing such a customer. He alleges that on or about October 6, 1922, he secured the customer, and thereby became entitled
At the trial in the Superior Court the jury found for the plaintiff. The defendants saved exceptions (a) to the refusal of the judge to direct a verdict for the defendants at the conclusion of the evidence; (b) to his failure to instruct the jury: “2. If the jury shall find that the plaintiff or his agent never produced a customer who was ready, able and willing to purchase the defendants’ real estate for $29,000 on terms of payment satisfactory to the defendants, their verdict must be for the defendants. 3. If the jury shall find that the plaintiff’s customers, Pressman and Rose, never came to any agreement with the defendants as to the terms of payment of the purchase price, the time for completion of the bargain or any other ‘terms which were to govern the rights of the parties,’ then their verdict must be for the defendants. 4. If the jury shall find that the defendants never accepted as customers the persons introduced to them by the plaintiff’s agent, then their verdict must be for the defendants”; and (c) to portions of the charge in which he left to the jury to say whether the customers were able to meet the conditions laid down by the plaintiff, and in which he instructed them “that when a man lists his property with a real estate man, he thereby makes a contract with the real estate man to find a purchaser for him.”
An owner of property does not make a contract of employment with a broker merely by listing property with him for sale. Cadigan v. Crabtree; 179 Mass. 474, 480, 481, 484. He makes an offer which ripens into a contract when the broker has accepted the offer by fulfilling its terms. Fitzpatrick v. Gilson, 176 Mass. 477. Roche v. Smith, 176 Mass. 595, 597. Monk v. Parker, 180 Mass. 246. Goodnough v. Kinney, 205 Mass. 203. Rosenthal v. Schwartz, 214 Mass. 371. Woods v. Matthews, 224 Mass. 577, 585. Bruce v. Meserve, 228 Mass. 463. Johnstone v. Cochrane, 231 Mass. 472. Cesarte v. Johnson, 232 Mass. 444. Doten v. Chase, 237 Mass. 218. Buono v. Cody, 251 Mass. 286. Hall v. Kotowski, 251 Mass. 494. Williston, Contracts, §§ 60, 60a, 60b. Until a contract comes into existence the owner can withdraw the offer;
The right to revoke is not dependent upon the reasons which may lead to its exercise, provided that it is exercised in good faith, which here means for any reason other than to obtain the results of the broker’s efforts without paying for them. O’Connell v. Casey, 206 Mass. 520. Leonard v. Eldridge, supra. An attempted revocation in such bad faith is in law no revocation. Cadigan v. Crabtree, 186 Mass. 7. The broker can, in such circumstances, recover compensation. This will be a commission, if a sale actually takes place, O’Connell v. Casey, 206 Mass. 520, 528; or the value of his time, labor and expense, if no completed transaction is carried through by the owner. Pullen v. Baltzer, 243 Mass. 419.
Of course the owner and broker at any moment in their negotiations may enter into a contract of employment if they so choose; but if they do, the compensation of the broker is not properly a commission, but an agreed sum or damages for breach of the particular contract made. Cohen v. Ames, 205 Mass. 186. Rosenthal v. Schwartz, supra. Smith v. Plant, 216 Mass. 91. Pullen v. Baltzer, supra.
Much of the apparent confusion in the decisions in suits by brokers for compensation is removed if this fundamental distinction between proposal and 'contract is kept in mind.
In the case before us the defendants contend that they had a right to withdraw any offer and to revoke any authority to act for them, by refusing, as they did, to go on to consider a sale at less than $31,000. They assert that a careful analysis of the evidence in its aspect most favorable to the plaintiff makes clear that, assuming that the plaintiff was
The test, whether the basic transaction was an offer or a contract of employment, is whether, when made, consideration was furnished. Williston, Contracts, § 60. It appears that there was no bilateral contract entered into. None is alleged. The consideration was the performance of certain things to be done in the future. At the beginning, then, there was merely an offer, not a contract. The offer could be withdrawn at any moment before the conditions were fulfilled. The conditions as stated by the plaintiff’s agent, if made in February, 1922 were: to get a customer for his property, total price $29,000, “$4,000 or $5,000 in cash, the balance to be on a mortgage, a first mortgage to be taken by the bank, and he would take a second mortgage, and the payments to be worked out when we got together, got a buyer.” For this the regular commission, three and one-half per cent, was to be paid.
There is no dispute that these conditions never were fulfilled. There was no working out of amounts of the mortgages, the times they were to run, the rates of interest. The evidence does not show that the proposed customers would have agreed to satisfactory terms. All it indicates is that they were willing and able to pay $5,000 cash, on a total price of $30,000, and desired to arrange other terms if possible. If payments could not be “worked out” reasonably, the defendants would have been under no obligation to treat the conditions of the offer as fulfilled.
They had, however, no such right if they were acting in bad faith to defeat the plaintiff’s earning his commission. The cases in which such bad faith has been found to exist are cases in which a sale has later been made. Profit from the plaintiff’s exertions seems essential to proof of bad faith. Smith v. Kimball, 193 Mass. 582, 586. O’Connell v. Casey, 206 Mass. 520, 526. Worster v. Stone, 217 Mass. 523, 526. Des Rivieres v. Sullivan, 247 Mass. 443. There is no sufficient evidence here of a purpose to deprive the plaintiff of his commission.
The defendants were entitled, therefore, to a directed verdict. As matter of law, on the evidence the plaintiff failed to make out a case. What has been stated establishes that there was error in refusing to give the requests for instructions numbered 2 and 3. Request 4 was too broad and was denied properly. The charge was erroneous in leaving the jury to find whether the customers were able to meet the
So ordered.