191 Mass. 483 | Mass. | 1906
This is an action of contract to recover a broker’s commission for effecting an alleged sale of certain real estate belonging to the defendant. In the Superior Court at the close of the evidence a verdict was directed for the defendant, and the case is before us on the plaintiff’s exceptions to this ruling, and the question presented is whether upon the evidence the plaintiff is entitled to be paid for his services.
Whatever contract is found to have existed between the par
No question of pleading is presented, for the declaration, which is on an account annexed, must be treated either as a quantum meruit, or as a count to recover a stated sum due upon the performance of a contract in writing but not under seal. Lovell v. Earle, 127 Mass. 546. Bowen v. Proprietors of South Building, 137 Mass. 274. And the case turns upon the construction which is to be given to the contract. By the language used it is manifest that the price at which the property sold was to fix the amount of the plaintiff’s commission. It was contemplated that an actual sale should be effected, and that payment to him should be made from the price obtained, and it was not an undertaking whereby the broker is only to find a purchaser, and having done so it becomes wholly immaterial so far as earning his commission is concerned whether the principal accepts the bargain, or lets the opportunity lapse. Neither does it fall within the principle of Cadigan v. Crabtree, 186 Mass. 7, 13, that where the agent, when at the point of a successful negotiation, has his authority revoked by the principal, who afterwards effectuates a sale with the proposed purchaser, evidence is thus furnished from which it can be found that the withdrawal of authority was made in bad faith, and for the purpose of enabling the principal to escape payment of a commission. But here the written agreements out of which the plaintiff’s right of action arises, either considered separately or together, must be construed as meaning that the sale was to be completed, and then out of the price any surplus beyond the amount stipulated which the defendant xyas to receive should be paid to him for his services. What the plaintiff really undertook was not only to find a purchaser at a fixed price, but to effect a sale, which meant a payment of that price, and this having been done he would have earned the excess, but until the consideration became payable, or the defendant refused to convey, he could not demand any remuneration, or maintain an action for breach of the contract. Walker v. Tirrell, 101 Mass. 257.
Exceptions overruled.