Alvord v. Cook

• Decision Date: 03 July 1899
• Parties: ALVORD et al. v. COOK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 120

54 N.E. 499

ALVORD et al. v. COOK et al.

Supreme Judicial Court of Massachusetts, Middlesex.

July 3, 1899

COUNSEL

Hayes &amp Williams, for plaintiffs.

R. Lund and Dana B. Gove & Sons, for defendants.

OPINION

HAMMOND J.

The ruling of the court as to the admission of the oral testimony, and the use to be made of it in connection with the contract between the plaintiffs and defendants, was in accordance with settled principles, and was correct. 1 Greenl.Ev. §§ 277, 282; Bassett v. Rogers, 162 Mass 47, 37 N.E. 772.

The first question in the case, as to liability, is whether the contract is to be interpreted as making the payment of the plaintiffs' commission conditional upon the actual carrying into effect of the agreement of sale between the defendants and Jewell. It is manifest that the defendants could not convey to the plaintiffs the Antwerp street estate until they had first obtained a conveyance of it from Jewell, and it is provided that the deed of the same shall be delivered, and cash balance due plaintiffs shall be paid, at the time the "agreement between said Cooks and said Jewell is carried into effect." The contract assumed the validity and binding force of the agreement of sale between the principals, and the sentence last above quoted, without the aid of the surrounding circumstances, is susceptible of two interpretations: First as being a clause for the protection of the defendants, and providing that they should pay nothing unless Jewell carried out his contract or the defendants saw fit to make him do so; and, second, as being a clause for the protection of the plaintiffs, and limiting the time beyond which they would not have to wait for their commission. Here the situation of the parties, and the circumstances existing at the time of the execution of the contract, may properly be considered. The defendants had employed the plaintiffs as brokers to act for them in obtaining a sale or exchange of their property, under such circumstances as would entitle the plaintiffs to a commission on obtaining a satisfactory contract for a purchase or exchange. They obtained a contract which was satisfactory to the defendants, in connection with an arrangement whereby the plaintiffs were to receive their commission in part by a conveyance of the Antwerp street estate, and in part by a payment of $200, instead of being paid entirely in cash. Both parties then expected that the Antwerp street estate would be conveyed by Jewell to the defendants on February 3, 1898, subject to a mortgage of $3,000, in accordance with his agreement. The contract and the agreement of exchange were executed at the same time. The plaintiffs had done all they were employed to do. They had obtained for the defendants a contract with Jewell which the defendants could compel him to carry out, and all parties expected it would be carried out. The plaintiffs had no further power in the matter; the rest was to be done by the defendants. But they had the right to assume that the defendants would use all reasonable efforts to do the rest, and to avail themselves of the agreement with Jewell. The defendants needed nothing to protect them, because all parties assumed that the contract was valid, and the defendants were masters of the situation as to whether it should be carried out. It is not reasonable to suppose that the plaintiffs intended to leave the question of the payment of their commission, in a matter where they had performed their whole duty by obtaining a valid enforceable agreement for the exchange of the property, to the chance of a subsequent cancellation of the agreement between the defendants and Jewell, or to the whim or caprice of either of the principals. Such an interpretation does not seem natural, under the circumstances. On the contrary, there was a reason why the time for the payment of the plaintiffs' commission, which otherwise would have been due at the time of the execution of the agreement for the exchange, should be definitely stated, so that the payments should not be indefinitely postponed or subject to uncertainty. Under all the circumstances, we think this clause was inserted for the purpose of fixing the time beyond which the plaintiffs were not called upon to wait, and not as a condition of payment. The burden of getting the Antwerp street estate was thrown upon the defendants, and they were bound, in good faith, to the plaintiffs, to use all reasonable efforts to get it. By agreements between the defendants, who seem to have been always ready, and Jewell, who does not seem to have been over ready, the time for carrying into effect the agreement for exchange was postponed from time to time, until March 1, 1898, at which time Jewell endeavored to get another extension, but the defendants refused to agree to it, and declined to hold themselves longer bound to Jewell under the contract, abandoned it, and have never since attempted to carry it out or enforce it. Nor does it appear that Jewell has ever since made any attempt to carry it out. The agreement appears to have been of binding force upon both parties, and, as neither party has attempted to enforce it, it must be regarded as, in substance, canceled by mutual agreement.

The defendants have neglected to take reasonable means to get the Antwerp street property, and so have become, by their own voluntary conduct, unable to carry out their contract with the plaintiffs. We think they cannot, in this indirect manner, do what they cannot directly do, namely, repudiate their contract; and it follows that there has been a breach for which the defendants can be held, in the absence of any other defense.

But the defendants say there is another defense. They say that the plaintiffs, while acting as their brokers, made an agreement with Richards, then acting as broker for Jewell, that the brokers for the contracting parties should share equally the commissions obtained on both sides, and that this arrangement was not known to the defendants and was a fraud upon them. Upon this the court found that the employment of the...