259 Mass. 430 | Mass. | 1927
This is an action of contract to recover a broker’s commission for procuring, for the defendant, a purchaser for a certain parcel of land, with the buildings thereon, and a lodging house business located and conducted at 37 Bowdoin Street, Boston, Massachusetts. The writ is dated April 18, 1924. The answer is a general denial and payment. At the close of all the evidence the defendant presented a motion for a directed verdict in his favor. The motion was denied and the defendant duly excepted. The
The terms upon which the plaintiff was authorized to procure a customer are not clearly stated but, in substance, may be said to be as follows: The plaintiff, a real estate broker, in 1922 met the defendant at 37 Bowdoin Street, Boston, had a talk with him “and obtained from him the particulars relative to the property in question, including the lodging house business.” In October, 1923, the plaintiff had a telephone conversation with the defendant, during which “he told the defendant that he had a customer by the name of Sherman for his property, and asked for particulars ag;ain.” The plaintiff testified in substance that the defendant replied “he didn’t decide to sell the property then, but that the plaintiff should call him up three days later and then he would let him know”; that he called him up three days later and the defendant gave him the particulars, which were, that he wanted $37,000 for the property, it brought in $307 per month, a man held a lease for ten years, inside was a lodging house, there was a first mortgage of $15,000 and the defendant wanted $7,000 to be paid in cash; that the plaintiff spoke about the commission and the defendant said he was going to pay the regular commission; that the plaintiff said “a business house [commission] is 5%” and the defendant replied, “All right, go and talk with him.”
The evidence warranted a finding that the defendant, in consequence of the action of the plaintiff, met the customer, Sherman, by appointment in January, 1924, at a hotel in Bowdoin Street; that they met for the purpose of talking about the property of the defendant at 37 Bowdoin Street; that in March, 1924, the defendant and Sherman agreed on terms and Sherman paid the defendant $1,000 as a deposit but was not ready to sign an agreement then or until April 23, 1924, “because there was difficulty in making arrangements about the first mortgage on the property.” It is admitted
The narrow question is, Did the plaintiff produce a purchaser before the date of his writ, April 18, 1924? The answer is found in the further question, Did the purchaser, Sherman, and the defendant intend to become bound to each other when they agreed upon the terms of sale and Sherman paid the $1,000 deposit in March? We think the defendant and Sherman did not intend to become bound to- each other until the action of the bank in relation to the first mortgage was determined, and until their agreement was put in permanent, written form. Lyman v. Robinson, 14 Allen, 242, 254. Sibley v. Felton, 156 Mass. 273, 277. This formal agreement had not been executed when the writ was brought. It follows that the action was premature and that judgment on that ground must be entered for the defendant.
So ordered.