Wiggin v. Holbrook

190 Mass. 157 | Mass. | 1906

Knowlton, C. J.

This is an action by a broker to recover a commission for the sale of a note and mortgage belonging to the defendants. The sale was not consummated, because the security was not legally satisfactory to the attorney of the purchaser, who thought that the mortgage did not give a right that could be enforced by foreclosure, in such a way as to convey to the purchaser at a foreclosure sale a perfect title to the real estate. The note and mortgage were given by the Boston Catholic Cemetery Association, for money which was used in the purchase of the real estate described in the mortgage.

The plaintiff contends that he procured a purchaser who was able, ready and willing to take the note and mortgage, if the mortgage conveyed a good title to the real estate described in it, and that the defendants impliedly agreed with him that the mortgage was enforceable, so as to make a perfect title to the property, if there should be a failure to pay the note. He fails upon both branches of his contention. In the first place, he. was not employed to sell real estate, to which his employers impliedly agreed that they would give a perfect title if he should find a purchaser. His employment was to sell a note and mortgage as they were, and he testified that, nearly a year before he entered upon his last employment for this purpose, he knew of the mortgage, knew what land it was on, and all the details of it. He knew, of course, that it was given by the Boston Catholic Cemetery Association. If the law relating to cemetery associations affected the validity of the mortgage, he knew the facts which bore upon the question of title, before he undertook to make the sale. The defendants did not agree with him, expressly or by implication, that the title which the mortgage purported to convey was free from legal objection, in reference to the power of such a corporation to make a mortgage. He undertook to sell a note and mortgage made by a cemetery association, and unless he found a purchaser who was ready to take the mortgage notwithstanding the character of the mortgagor, he did not earn his commission. So far as appears, the only question made by the attorney of the purchaser, in regard to the mortgage, was founded on the fact that the mortgagor was a cemetery, association. The contract between the plaintiff and the defendants related to a mortgage given by such a corporation, and the defendants were under no obligation to change the mortgage. See Tombs v. Alexander, 101 Mass. 255.

The plaintiff failed to procure a purchaser who was ready to take the note and mortgage. According to the undisputed testimony of himself and of Mr. Munroe, who were the only witnesses on this part of the case, Mr. Munroe, as a trustee, agreed to buy the note and mortgage if the title created by the mortgage was satisfactory to Mr. Sprague, his conveyancer. His only contract in regard to the matter was subject to this condition. The title was not satisfactory to Mr. Sprague in the particular above referred to. There was a dispute between eminent conveyancers in regard to the effect of the mortgage in this particular. Without reference to the question whether the title under the mortgage was in fact valid or invalid, Mr. Munroe declined to complete the purchase, because the title was not satisfactory to his conveyancer, by whose opinion he chose to be guided. Upon the express condition of his contract with the plaintiff, the agreement was of no effect. The plaintiff, therefore, failed to procure a purchaser who was ready to take the securities. The condition of his contract of sale was not that the title should be good, but that it should be satisfactory to a particular conveyancer, on whose judgment the purchaser relied. The defendants were at all times ready to assign the note and mortgage, if the plaintiff should find a purchaser who was ready to take them. The failure to make a sale was not the fault of the defendants, but the misfortune of the plaintiff, who failed to find a purchaser who would contract to buy them. See Fitzpatrick v. Gilson, 176 Mass. 477.

Upon the undisputed facts, it became unnecessary for the presiding judge to determine the question • between the conveyancers as to the validity of the mortgage.

Exceptions overruled.