253 Mass. 32 | Mass. | 1925
This is an action of contract to recover a commission claimed by the plaintiff by reason of his procurement of a customer for the purchase of certain mortgaged real property, in which the defendant had a beneficial interest, and over which she had control although title to the equity of redemption was in the name of her daughter, one Sadie Lewis. The declaration is in three counts, all for the same cause of action. The first and second counts allege that, if the plaintiff found a customer able and willing to buy for $16,000, the defendant promised to pay him $100, and the amount of the purchase price in excess of $16,000. The third count is on an account annexed for Services rendered in connection with the sale, under the conditions stated in the preceding counts. At the close of the evidence the defendant moved for a directed verdict, on the ground that there was not sufficient evidence to warrant a verdict for the plaintiff on the pleadings. The motion was denied subject to his exception, and the jury returned a verdict of $850 for the plaintiff. After the verdict was returned, but before it was recorded, the judge having reserved leave with the assent of the jury to enter a verdict for the defendant as provided in G. L. c. 231, § 120, the defendant moved for
The evidence was conflicting. But, if the jury believed the testimony of the plaintiff, they were warranted in finding the following facts: The plaintiff occupied a store in the premises under lease from a former owner, one Greenfield, who conveyed the property to the defendant’s daughter. In January or February, 1923, the defendant and her husband, accompanied by Mrs. Greenfield, wife of the former owner, came to the store and, after some conversation concerning the change of landlords, and making of arrangements for a proper indorsement of the plaintiff’s lease, the interview ended. Later in February Mr. and Mrs. Bloomberg again called to collect the rent and the defendant then said that they did not buy the property to keep; they were going to sell again and Bloomberg said "Why don’t you try to sell it now, you will get commission, and you are going to get paid” and the defendant said the same thing and also that she left to her husband the transaction of the business and that whatever he did would be satisfactory to her. The plaintiff, in pursuance of the authority thus received, endeavored to get a customer and as a result of his efforts found one David Andonian who agreed to pay $17,000 for the property. He then called the defendant by telephone and told her and her husband of the offer and that he would sell the property if he could get his percentage. The defendant said she could not pay him more than $100 if the price was $16,000, but that he could have all over $16,000 he could get. The next day Bloomberg called and, after some discussion, wrote on a piece of paper authorizing the plaintiff to sell the property on Fairmount Avenue, blocks and stores; if sold for $16,000 plaintiff was to get $100 and also all above that amount, if property sold for more. The plaintiff thereupon offered the property to Andonian who agreed to buy for $17,000. The plaintiff told Andonian he had better take $500 with him and the next day they went together to make this deposit and procure the agreement. The meeting was to be at Andonian’s restaurant. The defendant, being informed of this arrangement, said that her husband would
While there was no agreement that the plaintiff should have the exclusive agency, it is not without significance that the agreement of April 24, 1923, unnecessarily contains a clause that the defendant was to pay a commission of $350 to the second broker.
A review of the evidence, together with the rational inferences to be drawn therefrom, warranted a finding by the jury that the defendant knew that the purchaser, Andonian, was the plaintiff’s customer and, without terminating the plaintiff’s employment, not only endeavored to escape payment of his commission, but had repudiated her contract, thus preventing him from completing it. It follows that the commission had been earned. Cook v. Fiske, 12 Gray, 491, 493. Dowling v. Morrill, 165 Mass. 491. Cadigan v.
Exceptions overruled.