259 Mass. 383 | Mass. | 1927
This is an action by a broker to recover a commission upon a sale of a business. After verdict for the
There is no substantial dispute in regard to the following facts: About March 13, 1924, the defendant consulted with the plaintiff and his son, who was his agent or employee, about the sale of a business at Beverly. On March 28, he wrote the plaintiff stating that he gave the Columbia Real Estate Company, which was the name under which the plaintiff did business, for the term of sixty days from that date, exclusive agency for the sale of the business, intending not to offer it for sale through any other broker during that period, but expressly reserving the right to sell without liability for commission through his own efforts. “The selling price is to be $10,000.00 and your commission will be 10% of said, price, so that in any event, the sale of the business will net me $9000.00. ... It is understood, of course, that you are to be entitled to the commission hereinbefore stated, only, when and if a sale is consummated by you in accordance with my terms.” He enclosed check for $40 to be used in advertising. The plaintiff advertised and within a day thereafter was addressed by one Fowler in regard to a purchase. This was Fowler’s first knowledge of the chance to purchase. Fowler examined the property and talked with the plaintiff’s son and with the defendant, but thought the price too high and took up with the plaintiff possible purchases of other properties. No sale was arranged and no commission was earned before May 28, the expiration of the sixty days. In June, the defendant communicated with Fowler, lowered his price, and, after negotiations, agreed on a sale at $6,000, which was settled upon about June 24 and consummated on July 7. The property was owned by the defendant’s brother and transfer was made by the brother who was made payee of a note for $3,000, and grantee of a mortgage to secure the note given by Fowler for part of the purchase price.
1. The first count of the declaration, filed October 6, 1924, in the action begun August 21,1924, alleged that on or about March 13, the defendant requested the plaintiff to find a customer and agreed to pay a commission of ten per cent, that he found Fowler, who purchased and paid defendant $6,500, that ten per cent was a fair commission and the defendant, therefore, owed $650.
Obviously the proof failed to correspond. The contract, if made March 13, was different. It was open only until May 28, and payment was due only when and if a purchaser at $10,000, was secured. At the close of the evidence the plaintiff was allowed to amend by changing the date alleged from March 13 to June 25. The allegations of the amended count could be found to be true. Nothing appears to indicate that the defendant was misled or prejudiced in his defence. Under the statutes permitting amendment, G. L. c. 231, § 51 and § 138, it was for the judge to determine whether the cause of action remained the cause for which the suit was intended to be brought. Church v. Boylston & Woodbury Cafe Co. 218 Mass. 231. There was no error in finding that the cause for which the action was intended to be brought was the defendant’s failure to perform an obligation to pay a commission upon a sale made to a customer secured by the plaintiff; and no abuse in permitting an amendment which avoided technical objections to recovery upon evidence which could be found to prove that the cause of action was well founded.
2. The motion for a directed verdict was denied properly. There was evidence for the jury to pass upon which would justify finding that after possibility of claim or
The law has been so fully explained in Elliott v. Kazajian, 255 Mass. 459, and Walsh v. Grant, 256 Mass. 555, with citation of authorities, that it is not necessary here to discuss the principles of law applicable in the circumstances of this case. No claim was made that the defendant acted with intent to defraud the plaintiff. Cases like O’Connell v. Casey, 206 Mass. 520, have no application. Count one, a declaration upon an express contract, was appropriate pleading if the evidence showed that the parties had agreed in terms upon a definite compensation. Count two, upon an account annexed was proper if the terms of payment had not been expressly agreed upon; or if, after express agreement, the plaintiff had performed fully and nothing remained to be done except to make payment. Lovell v. Earle, 127 Mass. 546. Wheelock v. Zevitas, 229 Mass. 167,170.
There was no variance. There was no failure of evidence to support the material allegations. The truth lay with the jury for decision. They could find facts which would entitle the plaintiff to a verdict on either count, or on both.
3. We need not discuss in detail the requests for instructions. No exception is pressed to the refusal to give requests one, two, four, nine and thirteen. Requests three, ten, twelve, fourteen and fifteen are included under the motion for a directed verdict and are disposed of by what has been said in regard thereto. It is not law that “a written contract precludes recovery upon an oral contract.” Such a statement needs great modification. Evidence of a contract antecedent to March 28 might have a bearing upon the relations of the parties and be material on the issue of what was understood if the defendant requested the plaintiff to act. There was evidence for the jury to consider on the issue whether the plaintiff was efficient cause of the sale.
Exceptions overruled.