Ward v. Cobb, 148 Mass. 518

Ward v. Cobb

148 Mass. 518 | Mass. | 1889

Krowlton, J.

The question at issue in this case is whether the agreement entered into between the defendant and Francis L. Brown was a sale of the defendant’s real estate, within the meaning of the contract declared on. The defendant’s counsel do not contend that the words in the contract, “ shall effect a sale,” exclude from consideration former efforts of the plaintiff to sell the property, if those efforts finally resulted in a sale. Before the written contract between the plaintiff and the defendant was made, the plaintiff had agreed with Brown on the terms of a sale, and had drawn up and submitted to him a written contract, which the defendant had taken away to show to her attorney. If what the plaintiff had before done brought about a sale, he is entitled to the commission for which he sues.

The writing signed by the defendant and Brown was a contract of sale. It was not in the form required to pass the legal *521title to the real estate, but it gave him. an equitable right, and it bound her to make a conveyance, and him to take it and pay for it. Specific performance would have been decreed by a court of equity upon application by either of the parties. It was made subject to the contingency that the Massachusetts Hospital Life Insurance Company should consent to release the defendant from liability upon the mortgage note, and either party seeking to enforce it would have been obliged to show such consent; but there is nothing to indicate that the company was unwilling to release her, or that her conduct in relation to the contract was affected by this provision in it. Upon Brown’s failure to make payment according to the terms of the contract, and upon the continuance of his delinquency for two and a half weeks, the defendant’s attorney told him “ the matter was at an end,” and the defendant kept the two hundred dollars which had been paid, and voluntarily gave up her right to sue for the balance of the purchase money, or to obtain.a decree for specific performance.

The defendant saw fit to make the sale upon fifteen days’ credit, with no security for payment of the price, except the two hundred dollars which was given her when the contract was signed. The terms of sale were apparently satisfactory to her, — at least they were such as she chose to accept. It is a fair inference from the conduct of both parties, and especially from her retention of the two hundred dollars, that the contingency had happened upon which she had a right to enforce the contract. We are of opinion that a sale was effected, within the meaning of the agreement in relation to the plaintiff’s commission. This conclusion is in accordance with many decisions in similar cases. Rice v. Mayo, 107 Mass. 550. Chapin v. Bridges, 116 Mass. 105. Pearson v. Mason, 120 Mass. 53, 57. Desmond v. Stebbins, 140 Mass. 339. Veazie v. Parker, 72 Maine, 443. Coleman v. Meade, 13 Bush, 358. Love v. Miller, 53 Ind. 294.

Judgment affirmed.