Loud v. Hall

106 Mass. 404 | Mass. | 1871

Gray, J.

To support an action by a broker for commissions, proof that he effected or procured a sale is doubtless necessary, in *he absence of evidence of usage, or express or implied contract, or acts of the defendant preventing a completion of the bargain ay the broker. Cook v. Welch, 9 Allen, 350. Tombs v. Alexander, 101 Mass. 255.

The claim óf the brokers for commissions in the present case being founded on usage, it was necessary for them to prove it. Cook v. Welch, 9 Allen, 350, 352. Read v. Rann, 10 B. & C. 438. And it was of course competent for the defendant to introduce any evidence which tended to disprove any fact necessary to bring the case within the usage.

The judgment of the superior court in favor of the plaintiffs was based upon the findings of the judge, stated in his report, that “the plaintiffs first introduced and brought together the defendant and the ultimate purchaser, and produced one interview between them,” and that “ the plaintiffs, at the implied request and with the assent of the defendant, rendered broker’s services in the matter of the sale of the ship, according to the course of business in such matters and the usages of brokers.”

A usage, such as is stated in the report to have been proved by the plaintiffs, by which the seller of property is held liable to pay a commission to a broker whose services he has accepted, and who has introduced him to and brought him into negotiation with an ultimate buyer, and who is ready to continue his services until a sale is completed, is a reasonable usage. There is nothing unreasonable in allowing a commission to be recovered for such services accepted and rendered, independently of the question whether the sale is finally effected by the same or by another broker.

But one important element in the usage offered to be proved, and in the finding of the court, was that the plaintiffs were the persons who first introduced the parties to each other and brought them into negotiation. The evidence offered by the defendant tended directly to disprove this, by showing that the first introduction of the parties with a view to their assuming the relation of seller and buyer was by other persons than the plaintiffs This evidence upon a material fact necessary to support the plaintiff’s claim was therefore admissible under the general denial in the answer, and having been rejected, there must be a

New tried.