Gaynor v. Laverdure

• Decision Date: 17 January 1973
• Citation: 362 Mass. 828,291 N.E.2d 617
• Parties: Lucy K. GAYNOR v. W. Henry LAVERDURE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 617

291 N.E.2d 617

362 Mass. 828

Lucy K. GAYNOR v. W. Henry LAVERDURE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Sept. 11, 1972.

Decided Jan. 17, 1973.

J. Chester Webb, Waltham, for plaintiff.

Louis R. Sandini, Marlborough, for defendant.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

This is an action of contract in which the plaintiff seeks to recover $9,000 allegedly due her by the defendant for services rendered by her as a broker in procuring a purchaser for the defendant's real estate. The jury returned a verdict for the plaintiff in the sum of $1,000 and the case is now before us on her exceptions to certain instructions given to the jury by the trial judge and also to the judge's refusal to give the jury certain requested instructions.

The evidence permitted the jury to find the following facts which do not appear to be in dispute in so far as material to this decision. The plaintiff and the defendant were both licensed real estate brokers. G.L. c. 112, §§ 87PP--87DDD (inserted by St.1957, c. 726, § 2), as amended. The defendant had been an assessor of the city of Marlborough, and he had dealt in and with real estate for over twenty years. He owned a parcel of land consisting of about ninety acres located on Concord Road in Marlborough. The plaintiff asked the defendant whether she might show the land to Thomas W. Callahan, a lawyer, who was interested in buying it and the defendant told her she might do so and agreed to pay her a ten per cent commission 'on whatever price she could get a ready, willing and able buyer to agree to pay for it.'

The plaintiff submitted to the defendant an offer by Mr. Callahan to purchase the land for $91,300 subject to obtaining a change in its zoning classification and also subject to the defendant taking back a mortgage for one-half of the purchase price. The defendant refused to accept that offer. Thereafter the plaintiff submitted an unconditional offer by Mr. Callahan to purchase the land for $99,000. The defendant knew Mr. Callahan to be a member of the Massachusetts bar and a man of good reputation, and he was satisfied with him as an agreed purchaser.

On January 24, 1968, the defendant and Mr. Callahan signed an agreement by which the defendant agreed to sell and convey the land to Mr. Callahan and the latter agreed to pay the price of $99,000 of which $1,000 was paid on the date of signing and the balance was to be paid on conveyance which was to be made on August 11, 1968. The agreement concluded with the following provision: 'A broker's commission of $9,000 shall be paid by the seller to Lucy K. Gaynor.' Before signing the agreement the defendant discussed it with his lawyer who advised him that it fairly stated his understanding of the terms of the agreement between the plaintiff and the defendant. The defendant intended to be bound by the agreement when he signed it.

On August 11, 1968, Mr. Callahan did not pay the balance of the purchase price and did not take title as required by the agreement. The plaintiff demanded payment of her commission from the defendant and the latter did not pay her. On August 27, 1968, Mr. Callahan executed and gave to the defendant a written document (a) acknowledging his agreement of January 24, 1968, with the defendant, (b) stating that on August 11, 1968, the defendant was ready, willing and able to convey title to the land in question but that he, Mr. Calahan, was not then ready, willing and able to purchase the land, and (c) declaring that the defendant retain the deposit of $1,000 as liquidated damages and that the agreement be rendered null and void. The record does not indicate that the defendant made any effort to obtain specific performance of the agreement against Mr. Callahan. The defendant had no question in his mind about the good faith of either the plaintiff or Mr. Callahan throughout the entire transaction, and does not raise such a question now.

The plaintiff seasonably filed requests that the judge instruct the jury in effect that they were required to find (a) that the defendant had unconditionally agreed to pay the plaintiff a commission of 9,000 upon her procuring a buyer ready, willing and able to buy his land, (b) that by signing the agreement the defendant had accepted Mr. Callahan as a person procured by the plaintiff and who was ready, willing and able to buy his land, (c) that the plaintiff had acted in good faith throughout her dealings with the defendant, and (d) that the defendant owed the plaintiff the agreed commission of $9,000 plus interest thereon. The judge instead charged the jury that it was within their province to determine whether or not the plaintiff had produced a customer ready, willing and able to buy on the defendant's terms, and that if they should determine that she had done so, it was their further duty to determine what amount of money was fair and reasonable to recompense her for her services.

The judge's refusal to instruct the jury as requested by the plaintiff was error, and it was also error to give them the instructions described above.

The subject of the respective rights and liabilities of real estate brokers and their principals has received the attention of this court for over a century. At least as early as 1861 (Farnsworth v. Hemmer, 1 Allen 494), and again in 1869 (Walker v. Tirrell, 101 Mass. 257), we were required to decide cases brought by brokers who were claiming compensation for effecting exchanges of parcels of real estate, and at least as early as 1871 (Rice v. Mayo, 107 Mass. 550) we were required to decide a case brought by a broker claiming compensation for effecting a sale of real estate. Cases involving similar disputes thereafter reached this court in such large numbers that we were able to say in 1953 (Henderson & Beal, Inc. v. Glen, 329 Mass. 748, 751, 110 N.E.2d 373, 375): '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 the development and application of the 'clear rule' quoted above, this court has held consistently that in the absence of a special agreement providing otherwise, a broker has earned his commission when he has produced 'a customer ready, able, and willing to buy upon the terms and for the price given the broker by the owner.' One of the earlier complete statements of this rule by this court was in the 1900 decision of Fitzpatrick v. Gilson, 176 Mass. 477, at pp. 478--479, 57 N.E. 1000, at p. 1000, where we said: 'When a broker has found a customer for that for which his principal has employed him to find a customer, the broker has performed his duty, and has earned his commission, or, as the proposition is usually stated, if the person produced by the broker is able, ready, and willing to buy, sell, or lend, as the case may be, the broker's commission is earned. . . . When the broker has produced a customer, his duty is at an end; so far as his rights or his duty are concerned, it is immaterial whether a contract is, or is not, made, or, if made, whether it is or is not performed. The broker's right to a commission is no more dependent upon, or affected by, the fact that a contract is, or is not, drawn up and executed than it is by the fact that the contract, if drawn up, is or is not, carried into effect. Making or not making a contract with the customer produced, enforcing or not enforcing a contract, if made, are matters for the broker's principal to do or not to do, as his ability and inclination determine; they are matters with which the broker is not concerned, and on which his right to a commission is not dependent.' The following are a few of the many cases in which this rule has been stated or applied. Green v. Levenson, 241 Mass. 223, 224, 135 N.E. 114; Ripley v. Taft, 253 Mass. 490, 492--493, 149 N.E. 311; Chapin v. Ruby, 321 Mass. 512, 515, 74 N.E.2d 12; Drake v. Sweet, 325 Mass. 542, 544--545, 91 N.E.2d 346; McKallagat v. LaCognata, 335 Mass. 376, 378, 140 N.E.2d 185; MacDonald v. Mihalopoulos, 337 Mass. 260, 262, 149 N.E.2d 138; Spence v Lawrence, 337 Mass. 355, 358, 149 N.E.2d 379; Talanian v. Phippen, 357 Mass. 765, 256 N.E.2d 445.

Although a broker who has procured a customer is not obliged to see that the owner and the customer enter into a binding contract or that the contract, if one is made, is carried out, nevertheless, if no such contract is made, the broker suing for his commission has the burden of proving that his customer was ready, willing and able to buy on the owner's terms. Kelly v. Johnson, 258 Mass. 478, 480, 158 N.E. 444; Barsky v. Hansen, 311 Mass. 14, 16, 40 N.E.2d 12; Driscoll v. Bunar, 328 Mass. 398, 400, 103 N.E.2d 809; Henderson & Beal, Inc. v. Glen, 329 Mass. 748, 752, 110 N.E.2d 373; See Elliott v. Kazajian, 255 Mass. 459, 464, 152 N.E. 351; Siegel v. Brockton Sav. Bank, 312 Mass. 614, 45 N.E.2d 931; Lacombe v. Martin, 319 Mass. 116, 64 N.E.2d 622.

Although the execution of a purchase and sale agreement between the owner and the customer produced by the broker is not a condition precedent to the broker's right to a commission, it has an important bearing on the question whether the broker has maintained his burden of proving that the customer was ready, able and willing to purchase on the owner's terms. As early as 1876 we held in Pearson v. Mason, 120 Mass. 53, 58, that 'if such contract (between the owner and the broker's customer, binding the latter to purchase) were proved, he (the broker) was entitled to the commission as agreed.' The...