285 Mass. 197 | Mass. | 1934
The first count in the plaintiff’s declaration alleges that on or about September 29, 1928, the defendant employed him “to interest one Henry Ford in the purchase of defendant’s real estate” and agreed to pay
There was little conflict in the evidence. The defendant acquired his property in 1919 and by 1926 it had come to be surrounded by properties which had been purchased by Henry Ford whom the plaintiff had interested in the purchase of the Wayside Inn and other properties in the vicinity of the defendant’s farm. In 1926, the defendant refused an offer of $75,000 for his property made by an agent of Ford. The defendant had known the plaintiff for a long time. The plaintiff lived in the neighborhood and had once owned and lived on the property which the defendant had later purchased. So far as the record shows he was not a real estate broker or engaged in the real estate business. In September, 1928, the plaintiff was asked by the defendant to offer the property for sale to Ford for $150,000. After some discussion they made the agreement expressed in a letter from the defendant to the plaintiff dated September 29, 1928, which read as follows: “I am asking you to use your efforts to attempt to sell my property in Framingham to Mr. Henry Ford. I agree that if you succeed in selling this property at this time or if through other negotiations between Mr. Ford and myself at this time the property is sold to Mr. Henry Ford that I will pay you the customary brokerage in real estate transactions which you state is 6% upon the agreed purchase price as compensa
The evidence did not warrant the finding that the plaintiff was the efficient cause of the sale made in September, 1930. It is the plaintiff’s contention that the jury was warranted in finding from the earlier agreement made in 1928, from the conduct of the parties and from the evidence as to the conversation had in February, 1930, that
In effect the plaintiff makes the contention that at the time of the conversation in February, 1930, a contract was made embodying that portion of the contract of September, 1928, which provided for the payment of compensation to the plaintiff in the event that a sale were made to Ford by the defendant’s efforts but rejecting the elements of time limitation which are conspicuous in the earlier contract. The record does not afford the basis for such conclusion. In the undisputed testimony as to that conversation there appears no mention of the letter of September 29, 1928, or the contract there embodied, no discussions as to the terms of that contract or as to the adoption of portions of its provisions or the rejection of other portions, no reference to compensation of the plaintiff or to acts or events upon which compensation would depend. The fact that the defendant agreed in writing in 1928 to pay compensation to the plaintiff within a carefully limited time in the event that a sale should be effected by the defendant himself does not in the circumstances appearing justify the conclusion that in 1930 he agreed without any limitation as to time to pay a commission if a sale resulted from the defendant’s efforts. Viewing all the evidence in the light most favorable to the plaintiff we are of the opinion that a finding would not be war
The content of the brief conversation in February, 1930, does not disclose what the plaintiff must do in order to be entitled to compensation nor, in our opinion, may that be determined from subsequent conduct of the parties. In substance the defendant said that he would like to take up again the matter of selling his propérty to Ford; the plaintiff said he would be glad to and thereafter arranged a meeting between Ford’s agent and the defendant. An intent of the parties in February, 1930, that the plaintiff should be compensated for doing something may on the evidence be found without difficulty, but what he was to do, unexpressed in the conversation and not inferable from the circumstances then or thereafter existing, is not so readily discernible. But in 1928 as well as in 1930 some acts of the nature of performance were required of the plaintiff. Since the evidence as to what happened in February, 1930, does not show what the parties intended should constitute performance by the plaintiff, we think the jury would have been warranted in having recourse to the requirements of performance on the part of the plaintiff under the earlier agreement. By the terms of the contract made in 1928 the plaintiff was required “to use . . . [his] efforts to attempt to sell” the defendant’s property to Ford, and if he should “succeed in selling this property” he would become entitled to receive “the customary brokerage in real estate transactions” as compensation for his services. Under this branch of the earlier contract the plaintiff did not become entitled to compensation upon doing a specified act or certain designated things preliminary to or connected with the negotiation of a contract. In this respect the case of Smith v. Plant, 216 Mass. 91, is distinguishable on its facts.
Except that the contemplated purchaser was selected in advance by the seller, the contract of 1928 so far as concerns performance by the plaintiff did not differ essentially from the undertaking- of a real estate broker under the ordinary relationship between such broker and his
The defendant unless he acted in bad faith could revoke such a contract at any time while negotiations were still in progress and before the plaintiff accomplished the thing which entitled him to compensation. The delivery by the defendant to the plaintiff of the letter dated June 26, 1930, under the existing circumstances which were not materially in dispute, constituted an adequate revocation of the plaintiff’s authority under any agreement between the parties which could be found then to exist unless the defendant acted in bad faith. Bad faith in such connection means a purpose on the part of the defendant to obtain without payment a profit from the plaintiff’s exertions. Elliott v. Kazajian, 255 Mass. 459, 462, 464. On the view of the evidence most favorable to the plaintiff it could not be found that such was the defendant’s purpose. There was no evidence warranting the finding that there was a simulation by the defendant that negotiations had been abandoned or deceit as to the stage of the progress of negotiations, Delaney v. Doyle, 267 Mass. 171, 177, or that the revocation came when the negotiations were "plainly and evidently approaching success,” Sibbald v. Bethlehem Iron Co. 83 N. Y. 378, 384, cited in Cadigan v. Crabtree, 186 Mass. 7, 13, or that the plaintiff had performed all he had undertaken. Zisman v. Spitz, 259 Mass. 392. The present case is well within the usual rule that in the absence of bad faith on the part of a seller he may, without liability in damages, revoke the authority of an agent even though negotiations for a sale instituted, or participated in, by the agent are then in progress with a possible or even probable buyer. Pagum v. White, 259 Mass. 437, 439.
The plaintiff’s exception to the admission of testimony that the defendant paid a commission to brokers employed
The fact that early in the spring of 1930, the defendant expressed to Ford’s agent at a time when he was asking $125,000 for his property an intention to pay the plaintiff $5,000- in the event of a sale, is reasonably consistent with an agreement to pay a commission if the plaintiff’s efforts to make a sale were successful. It does not afford the basis for a finding that some other contract with a different though indefinite stipulation as to compensation had been made. If the defendant’s version of the incident occurring in September, 1930, were accepted, the conclusion might be drawn that the defendant was gratuitously rewarding unsuccessful attempts by the plaintiff to effect a sale. If the evidence consistent with that conclusion be disregarded there is little left but the fact that the defendant handed the plaintiff a check and the plaintiff said he would take it on account. We are of the opinion that this taken with all the evidence does not warrant the conclusion that the defendant admitted that there was some other agreement between the parties than that the plaintiff was to be compensated if his efforts were successful and that it does not affect the conclusion herein earlier reached on undisputed evidence that the plaintiff’s authority under the contract which might have been found to have existed was revoked.
The plaintiff’s exceptions to the denial of his motion for leave to amend the first count in the declaration must be overruled. It was addressed to the discretion of the trial judge and the record does not disclose reasons for reviewing his action. G. L. (Ter. Ed.) c. 231, §§ 51, 138. Barlow v. Nelson, 157 Mass. 395. First National Bank of Chelsea v. Hall, 170 Mass. 526. Crowley v. Holdsworth, 267 Mass. 13. Knox v. Springfield, 273 Mass. 109.
Exceptions overruled.