216 Mass. 525 | Mass. | 1914
This is an action to recover $243.75, as a broker’s commission on the sale of the defendant’s real estate. It was
It is plain that the offer testified to by Cox and the defendant was an offer like that in question in Munroe v. Taylor, 191 Mass. 483, where nothing is due to the broker unless a sale is made. Cox testified “that he was authorized by the defendant to sell the property at $9,500 net; that all over that amount Noyes was to get.” The defendant’s testimony was: “That said Cox was given authority to sell at $9,500 net t"o the defendant, all over which amount Cox or Noyes was to get.” Such an offer is an option to sell to the broker or his nominee rather than an authority to the broker to find a customer. But whichever view of it is taken, nothing is due unless a sale is made and carried through.
The plaintiff testified: “That he understood the price $9,500
Although the only commission claimed by the plaintiff in his declaration is. a commission for procuring a customer at the price of $9,750, we. understand the plaintiff to contend that he is entitled to a commission on the ground that his services were the effective cause of the sale actually made to Curtis for the price of $9,000. This contention is not open to the plaintiff. Since the ruling directing the jury to find a verdict for the defendant may have been made because of the terms of the declaration, and if made for that reason it was right, an exception taken to it cannot be said to be wrong. Such a case also comes within the doctrine acted upon in Parrot v. Mexican Central Railway, 207 Mass. 184, that a ruling may be supported in this court on a ground “never referred to or thought of by the judge or counsel at the trial.” Indeed that doctrine goes farther still and extends to a case where a right ruling is made for a wrong reason. Bean v. Hubbard, 4 Cush. 85. O’Keeffe v. John P. Squire Co. 188 Mass. 210.
The opposite result is reached in case of a ruling which is right except for the pleadings, and the pleadings were not referred to when the ruling was made. In such a case, if the state of the pleadings had been called to the attention of the presiding judge, the objection could have been avoided by an amendment. The objecting party who intends to rely on the state of the pleadings in support of his objection must bring that fact to the attention of the presiding judge at the time the objection is taken. If he does not do so he cannot be heard afterwards to support his objection on that ground. McLean v. Richardson, 127 Mass. 339.
We have less hesitancy in disposing of this latter contention on
The entry must be
Exceptions overruled.