10 Mass. App. Ct. 835 | Mass. App. Ct. | 1980
The plaintiffs, who seek to recover a broker’s commission in connection with the sale of the defendants’ real estate, claim to be aggrieved by the direction of verdicts for the defendants. It was error to direct the verdicts.
We apply the settled rule that a verdict should not be directed if “anywhere in the evidence, from whatever source derived, any combination of
The defendants have argued the applicability of Creed v. Apog, 6 Mass. App. Ct. 365 (1978), modified on another point, 377 Mass. 522 (1979). Creed’s teaching is that when an agreement between a broker and his principal is clear and unambiguous as to the principal’s duty to compensate, the parties are bound by the agreement and the broker may not recover without a showing of compliance with its terms. Creed v. Apog, 6 Mass. App. Ct. at 372-373. Creed is inapposite because in the instant case the agreement is silent as to the right of the plaintiffs to a commission if the lessee should purchase the property in circumstances not provided for by the terms of the agreement or of the lease to which the agreement refers.
There was no error in the denial of the plaintiffs’ motion for directed verdict. Boston Edison Co. v. Forbes, 4 Mass. App. Ct. 787, 788 (1976). It is regrettable that the judge did not take the more cautious approach of giving the case to the jury and then, if necessary, entering judgment notwithstanding the verdict. Mass.R.Civ.P. 50(b) 365 Mass. 814-815 (1974). See Soares v. Lakeville Baseball Camp, Inc., 369 Mass. 974, 975 (1976). The time and expense of a new trial could have been avoided.
Judgment reversed.