323 Mass. 669 | Mass. | 1949
This is an action by a broker to recover a commission. The jury could have found these facts: The defendant was the owner of certain bowling alleys on Quincy Shore Boulevard. Sometime in August or September, 1944, the plaintiff, who sold bowling alley supplies and equipment, had a conversation with the defendant concerning the sale of these alleys. In that conversation, according to the plaintiff's version of it, the defendant told the plaintiff that he wanted to “get rid” of his bowling alleys. The plaintiff said, “Why don’t you let me sell one
Sometime in September, 1944, the plaintiff brought customers who were “ready, willing and able to purchase the alleys at the terms stated by the defendant.” The defendant did not sell the alleys to these customers, but sold them to another person for $21,000.
The jury returned a verdict for the plaintiff. The only question for decision is whether the judge erred in denying the defendant’s motion for a directed verdict.
To recover a commission a broker ordinarily is required to prove only that he procured a customer ready, able, and willing to buy on the owner’s terms. Chapin v. Ruby, 321 Mass. 512, 515, and cases cited. But sometimes the terms of the broker’s employment are such that he is to receive a commission only if an actual sale is made. Munroe v. Taylor, 191 Mass. 483. Cohen v. Ames, 205 Mass. 186. Staula v. Carrol, 312 Mass. 693. In the case last cited the defendant employed the plaintiff to sell two pieces of real estate, and promised him as a commission all that he should obtain above $10,000. The plaintiff obtained a customer ready, able and willing to pay $10,500 but the defendant refused to sell. It was held that on these facts the broker was not entitled to recover. The court said, “The significant term of the agreement was that the plaintiff was to have as his only commission ‘whatever amount he obtained for said properties in excess of $10,000.’ There could hardly be any amount ‘obtained’ unless the title should pass” (page 694). Other cases to the same effect are Noyes v. Caldwell, 216 Mass. 525, Carpenter v. Blake, 251 Mass. 47, and Pagum v. White, 259 Mass. 437.
If the agreement in the case at bar was that the defendant
Exceptions overruled.