Madden v. Hurley-Driscoll Building Co., 276 Mass. 217

Madden v. Hurley-Driscoll Building Co.

276 Mass. 217 | Mass. | 1931

Wait, J.

This case is before us upon exception claimed by the plaintiff to an order directing entry of verdict for the defendant made under leave reserved pursuant to G. L. c. 231, § 120, after a verdict for the plaintiff. It must be decided upon a narrow ground which does not go to the merits.

The defendant contends, rightly, that the action was brought prematurely. The writ bore date September 25, 1929. Service was made on September 27. The writ was entered on November 4, 1929; and, on that day, the plaintiff filed his declaration alleging that the defendant owed him a broker’s commission as the efficient cause of a sale of real estate. Uncontradicted evidence showed that the *218agreement for sale to the alleged customer of the plaintiff did not become binding until sometime in October or November of 1929, and that the deed did not pass until January 13, 1930. The case is controlled by the recent decision in Goldstein v. Ziman, 259 Mass. 430, which held that, as a broker’s commission for being the efficient cause of a sale is not due until the conveyance or a binding agreement of purchase and sale has been made, an action instituted before that time is premature.

We need not consider whether there was sufficient evidence to take the case to a jury upon the merits.

Exceptions overruled.