| Mass. | Mar 1, 1912
This is an action of contract wherein the plaintiffs as real estate brokers seek to recover a commission for the sale of real estate belonging to the original defendant. The latter having died since the action was brought, the executrix defends. The jury found for the plaintiffs, and the case is before us upon exceptions to the refusal of the presiding judge to give certain rulings requested by the defendant and to the rulings given.
So far as respects the defense of the mental incapacity of the defendant’s testator to understand the 'agreement with Freudenburg the proposed purchaser, and also the defense of fraud, the defendant has no ground of complaint. The evidence on each of these points was conflicting and would have warranted a finding either way. And the jury were distinctly told that if there was any fraud practised by the plaintiffs upon the defendant’s testator either as to the tenor of the agreement or to induce him to sign it, or if he signed it under such a degree of mental incapacity as to prevent him from comprehending what he was doing, then the verdict should be for the defendant.
The defendant’s testator having accepted the proposed purchaser by entering into the written contract of sale with him, it was not necessary for the plaintiffs to prove at the trial that the purchaser was able; ready and willing. When the valid written contract was executed the commission of the plaintiffs was earned. Roche v. Smith, 176 Mass. 595" date_filed="1900-10-17" court="Mass." case_name="Roche v. Smith">176 Mass. 595, 597, and cases cited. The plaintiffs were not obliged to go further.
The charge of the presiding judge sufficiently covered the question of double commission. Under the charge the jury must have found that at the time the contract of sale was signed there was no agreement on the part of the proposed purchaser to pay the plaintiffs any commission for any purpose whatever. See Alvord v. Cook, 174 Mass. 120" date_filed="1899-07-03" court="Mass." case_name="Alvord v. Cook">174 Mass. 120, for a discussion of the law on this subject.
We see no error in the manner in which the judge dealt with the requests, and the charge was full and correct.
Exceptions overruled.