250 Mass. 215 | Mass. | 1924
This is a bill in equity to recover a broker’s commission for the sale of real estate owned by the defendant Atherton, and to prevent the payment of that commission to the defendant Mason, another broker. Atherton, in his answer, alleges that the plaintiff and Mason both claim to be entitled to the commission, and prays that they be ordered to interplead. Mason filed an answer and contended therein, that he had procured the sale and was entitled to the commission. The case'was referred to a master who made certain findings of fact, and upon these facts found that the
The question arises whether the master made a finding upon all the evidence that the plaintiff was the efficient, predominating cause of the sale, or whether he made that finding as an inference from the other findings made by him. If the former, it must stand. If, as we construe this finding, it was made as an inference from the other findings, then it is our province and duty to draw the proper inferences from the facts found, unaffected by the conclusion reached by the trial judge, as all the facts are stated in the master’s report and so far as we are concerned do not depend upon the testimony of witnesses. Harvey-Watts Co. v. Worcester Umbrella Co. 193 Mass. 138. Glover v. Waltham Laundry Co. 235 Mass. 330, 333, 334. Moss v. Old Colony Trust Co. 246 Mass. 139, 144. Caines v. Sawyer, 248 Mass. 368.
The question then is, What are the substantial facts upon which the master drew the inference that the sale was the result of the efforts of the plaintiff? Briefly stated, the facts found by the masteroare as follows: The plaintiff, a real estate broker, was requested by the defendant Atherton to find a customer for his property; he agreed to pay her a commission of two and one half per cent of the selling price, and told her his price was $65,000. The plaintiff then went to one Barney J. Michelman and tried to interest him in the property. He sent her to his brother Louis, and thereafter her negotiations were principally with the latter. The Michelmans became interested in the property and at their request the plaintiff ascertained that there were two mortgages thereon, and that Atherton, in case of sale,
The master also found that, while the plaintiff was attempting to bring about the sale, the defendant Mason, who was also a real estate broker, saw Atherton and asked about the property; that the latter told him the price was $65,000 and he agreed to pay Mason a commission of two per. cent on the selling price. The latter brought a man to look at the property and spoke to others about it, and finally went to one of the Michelmans and tried to sell it to him. Michel-man told him that the plaintiff had already spoken to him about it. Mason told Michelman that Atherton wanted $65,000 but that he thought it could be bought for $60,000; there was talk of an offer of $57,000 or $57,500, but nothing came of it. Mason then persuaded the Michelmans to put their offer in writing and make a deposit. Mason furnished the necessary information about boundaries and rentals, and a formal agreement by the Michelmans to buy and by Atherton to sell for $60,000 was prepared and signed by the Michelmans. Mason took this agreement to Atherton who refused to sign it, saying that he already had an offer of $60,000 and had “ turned it down.” The master further found that at a later interview Mason induced Atherton to cross off the signatures of the Michelmans on the agreement, to change the price to $63,000, and to make a few other changes therein; that then Atherton signed it; that Mason took it to the Michelmans and they signed it; and that the property was conveyed to them for $63,000. The consideration was paid with money loaned on mortgages by two
Upon the foregoing findings the master drew the inference of fact that the plaintiff was the predominating, efficient cause of the sale and was therefore entitled to recover the agreed commission of two and one half per cent on $63,000.
There is nothing to show and it is not contended that the plaintiff was given the exclusive agency in the sale of the property. The owner could employ others for that purpose if he so desired; therefore Mason could properly act in that capacity. The only price for which the plaintiff was authorized to find a customer was $65,000. Mason induced Atherton to accept and the Michelmans to pay $63,000. It is plain that the sale was finally consummated in accordance with the agreement procured by Mason. The only offer which the plaintiff obtained was one of $60,000, which she communicated to Atherton and he refused; and it was found that she did not see the Michelmans again before the property was sold to them, or make any attempt to obtain a higher offer.
Although it was through the efforts of the plaintiff that the Michelmans became interested in the property, and she performed other services in an endeavor to make a sale to them, she failed to induce them to agree to pay more than $60,000; and Atherton at no time authorized her to make a sale for less than $65,000. There was no evidence that would warrant a finding that the purchasers ever came to an agreement with the plaintiff to take the property at that price, or bought it upon information secured by her.
The finding of the master that the defendants acted in good faith and without any collusion between them, and the other subsidiary facts found, make it plain that the proper inference to be drawn therefrom is that the efforts of the defendant Mason were the efficient and predominating cause of the sale, and that he is entitled to the commission. Ward v. Fletcher, 124 Mass. 224. Dowling v. Morrill, 165 Mass.
It results that the interlocutory and final decrees must be affirmed.
Ordered accordingly.