367 Mass. 622 (1975), Tristram's Landing, Inc. v. Wait

Citation:367 Mass. 622, 327 N.E.2d 727
Party Name:TRISTRAM'S LANDING, INC., et al. [ 1] v. Linda Loring WAIT.
Case Date:May 02, 1975
Court:Supreme Judicial Court of Massachusetts

Page 622

367 Mass. 622 (1975)

327 N.E.2d 727



Linda Loring WAIT.

Supreme Judicial Court of Massachusetts, Nantucket.

May 2, 1975

Argued Feb. 5, 1975.

[327 N.E.2d 728] Richard Wait, Boston, for defendant.

Anthony E. Battelle, Boston, for plaintiffs.


Page 623

TAURO, Chief Justice.

This is an action in contract seeking to recover a brokerage commission alleged to be due to the plaintiffs from the defendant. The case was heard by a judge, sitting without a jury, on a stipulation of facts. The judge found for the plaintiffs in the full amount of the commission. The defendant filed exceptions to that finding and appealed.

The facts briefly are these: The plaintiffs are real estate brokers doing business in Nantucket. The defendant owned real estate on the island which she desired to sell. In the past, the plaintiffs acted as brokers for the defendant when she rented the same premises.

The plaintiffs heard that the defendant's property was for sale, and in the spring of 1972 the plaintiff Van der Wolk telephoned the defendant and asked for authority to show it. The defendant agreed that the plaintiffs could act as brokers, although not as exclusive brokers, and told them that the price for the property was $110,000. During this conversation there was no

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mention of a commission. The defendant knew that the normal brokerage commission in Nantucket was five per cent of the sale price.

In the early months of 1973, Van der Wolk located a prospective buyer, Louise L. Cashman (Cashman), who indicated that she was interested in purchasing the defendant's property. Her written offer of $100,000 dated April 29, was conveyed to the defendant. Shortly thereafter, the defendant's husband and attorney wrote to the plaintiffs that 'a counter-offer of $105,000 with an October 1st closing' should be made to Cashman. Within a few weeks, the counter offer was orally accepted, and a purchase and sale agreement was drawn up by Van der Wolk.

The agreement was executed by Cashman and was returned to the plaintiffs with a check for $10,500, representing a ten per cent down payment. The agreement was then presented by the plaintiffs to the defendant, who signed it after reviewing it with her attorney. The down payment check was thereafter turned over to the defendant.

The purchase and sale agreement signed by the parties called for an October 1, 1973, closing date. On September 22, the defendant signed a fifteen day extension of the closing date, which was communicated to Cashman by the plaintiffs. Cashman did not sign the extension. On October 1, 1973, the defendant appeared at the registry of deeds with a deed to the proeprty. Cashman did not appear for the closing and thereafter refused to go through with the purchase. No formal action has been taken by the defendant to enforce the agreement or to recover damages for its breach, although the defendant has retained the down payment.

Van der Wolk presented the defendant with a bill for commission in the amount of $5,250, five per cent of the agreed sales price. The defendant, through her attorney, refused to pay, stating that '(t)here has been no sale and consequently the 5% commission has not been

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earned.' The plaintiffs then brought this action to recover the commission. 2

[327 N.E.2d 729] In the course of dealings between the plaintiffs and the defendant there was no mention of commission. The only reference to commission is found in the purchase and sale agreement signed by Cashman and the defendant, which reads as follows: 'It is understood that a broker's commission of five (5) per cent on the said sale is to be paid to . . . (the broker) by the said seller.' The plaintiffs contend that, having produced a buyer who was ready, willing and able to purchase the property, and who was in fact accepted by the seller, they are entitled to their full commission. The defendant argues that no commission was earned because the sale was not consummated. We agree with the defendant, and reverse the finding by the judge below.

1. The general rule regarding whether a broker is entitled to a commission from one attemputing to sell real estate is that, absent special circumstances, the broker '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.' Gaynor v. Laverdure, --- Mass. ---, ---, a 291 N.E.2d 617 (1973), quoting Henderson & Beal, Inc. v. Glen, 329 Mass. 748, 751, 110 N.E.2d 373 (1953). In the past, this rule has been construed to mean that once a customer is produced by the broker and accepted by the seller, the commission is earned, whether or not the...

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