Henderson & Beal, Inc. v. Glen

• Decision Date: 03 February 1953
• Citation: 329 Mass. 748,110 N.E.2d 373
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: HENDERSON & BEAL, Inc. v. GLEN et al.

Page 373

110 N.E.2d 373

329 Mass. 748

HENDERSON & BEAL, Inc. v. GLEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 6, 1952.

Decided Feb. 3, 1953.

Joseph B. Abrams, Boston (Lionel H. Perlo, Brookline, with him), for plaintiff.

Thomas H. Mahony, Boston, for defenants.

Before QUA, C. J., and LUMMUS, SPALDING, WILLIAMS and COUNIHAN, JJ.

COUNIHAN, Justice.

This is an action of contract to recover for services in procuring a customer for certain real estate owned by the defendants. ¹ The declaration is in two counts, the first alleging an express contract to pay the plaintiff a broker's commission in a specific amount and the second in quantum meruit.

The jury found for the defendants on count 1 and for the plaintiff on count 2. The action is here upon exceptions of the defendants to the denial of a motion for directed verdicts and to the denial of a motion requiring the plaintiff to elect between counts 1 and 2. Inasmuch as there was a verdict for the defendants on count 1, we consider the exceptions to the denial of the motion for directed verdicts only in so far as they relate to count 2. There was no error.

The evidence in its aspect most favorable to the plaintiff may be summarized as follows: The defendants with their respective wives were owners of a building No. 275-285 Congress Street, Boston, when this controversy arose, and were then represented by an attorney named William L. Berger. The plaintiff was engaged in the real estate business and had in its employ as a broker one Frank Howard who had thirty years' experience in that business. Sometime in June, 1948, Howard met Mr. Berger who told him that he had this building for sale and that he had all the data regarding it in his office. The next day Howard called on Mr. Berger who gave him a 'listing' in writing of this property. ² Among other things the 'listing' recited that heat for the building was supplied by the Boston Edison Company. Mr. Berger gave him the names of the defendants and their address and said that it would be all right for Howard to talk with them to verify the figures in the 'listing' and ascertain whether a heating contract would be available if the building should be sold. As a result Howard called upon the defendants and gave them his card. He told them of his talk with Mr. Berger and showed them the 'listing.' He told them that he had a customer who was ready to buy the building on the terms and for the price asked by Mr. Berger, and that he would have to have a heating contract as represented by Mr. Berger. The defendants said that the terms, conditions, and price were all right. They said that the boilers in the building were inadequate and that they were purchasing heat from one Weinrib, the owner of the adjoining building, at the same rate as that charged by the Boston Edison Company. They further said, 'any other information you want you better get in touch with Mr. Berger. He is in complete charge and anything he says is all right by us.'

Howard told them that if his customer agreed to purchase upon the terms and conditions and for the price which they had discussed the plaintiff was to receive a full commission according to the rates of the Boston Real Estate Exchange which would amount to $3,500 more or less. Levy promised to pay such a commission.

Howard thereupon went to work and after talking with several brokers, through one Segal, was brought into contact with one Joseph Glasser. Subsequently Howard Segal, and Glasser went to Mr. Berger's office on July 8, 1948. Glasser who was then able to purchase told Mr. Berger that he was ready and willing to purchase the building on the terms and for the price which Mr. Berger had given Howard. Mr. Berger said he would get a five year heating contract for the building from Weinrib similar to that which the defendants had. Mr. Berger then drafted a purchase and sale agreement which substantially embodied all of the terms agreed to by Howard, Mr. Berger, and the defendants except the provision for the payment of the full commission to the plaintiff. This agreement set out the purchase price, the amount of the deposit, the balance due on the outstanding mortgage with the terms of payment of principal and interest, the amount of cash to be paid upon passing of papers, and that the deed would be subject to taxes, local zoning laws, party wall agreements of record, and leases. It recited the terms of all the leases and listed in detail the income and expenses of operating the building and fixed the time of passing papers. It referred to an agreement for heating the building which was to be assigned to the purchaser when papers passed. The agreement drawn by Mr. Berger erroneously recited that a copy of this heating agreement was annexed to and made part of the agreement.

While the drafting of this agreement was in process, Mr. Berger conferred with the defendants several times on the telephone. All of its terms were agreed to by Glasser but there was considerable discussion about the commission to be paid by the defendants to the plaintiff. Howard refused to accept anything less than $3,500 and Mr. Berger said the defendants would not pay more than $2,000. Finally at the request of Mr. Berger, Glasser said that rather than lose the deal he would contribute an additional $1,500 toward the payment of the commission.

Several times during his talks with Mr. Berger, Howard spoke of need for a heating contract, and Mr. Berger assured him that it had been prepared and was waiting for the signature of Weinrib. At one time he said, 'Don't be childish about it. We can't sell the building we know that without a heating contract.'

The defendant later refused to sell to Glasser but sold to Weinrib for $140,000 without payment of a commission.

The fair value of the plaintiff's service was $3,500.

Much of this evidence was contradicted by Mr. Berger and the defendants who contended that the negotiations only amounted to an offer to sell which was never accepted.

The obligation of an owner, or one who engages a real estate broker, to pay a commission to the broker has been the subject of frequent litigation in our courts. Through a maze of conflicting facts and confusion of varying circumstances one clear rule has been established and that is that a broker in the absence of special circumstances is entitled to a commission if he produces a customer ready, able, and willing to buy upon the terms and for the price given the broker by the owner. In Ripley v. Taft, 253 Mass. 490, at pages 492-493, 149 N.E. 311, at page 312, it was aptly stated, 'The obligation of a broker employed to procure a customer for the purchase of property is at an end, and he is entitled to a commission, when such customer has been produced. It is immaterial whether a contract between the seller and prospective purchaser is made, or, if made, whether...