Bemister v. Hedtler
| Decision Date | 20 May 1924 |
| Citation | 249 Mass. 40,143 N.E. 818 |
| Parties | BEMISTER v. HEDTLER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston, Appellate Division.
Action of contract by George E. Bemister against Matilda G. Hedtler and others on account annexed for procuring a purchaser for land. From final decision of Appellate Divsion of Municipal Court of City of Boston dismissing report, defendants appeal. Order reversed, and judgment entered for defendants.
H. A. Murphy and J. F. Fleming, both of Boston, for appellants.
W. J. Gaffney, of Boston, for appellee.
This is an action to recover a broker's commission. There was evidence from which it could have been found that the plaintiff was employed by the defendants to obtain a customer for their property ‘for something over $7,500’ and that they ‘would pay him the difference between $7,$500 and what his customer agreed to pay, as commission.’ Thereafter the plaintiff produced one Lena Lubin who orally agreed to purchase the property and pay $7,800 therefor. As no valid agreement could be made on Sunday, the day when the parties first met, it was decided that they should again meet the next morning. The following morning, as the plaintiff approached the place of meeting, he met the defendants' agent coming away, who said to the plaintiff ‘that everything was all right, that they sold the property to Mrs. Lubin, tha she had signed an agreement and that she had paid a deposit of $500.000.’ In fact she had not signed any agreement but had made a deposit of $500 and had taken a receipt therefor from the defendants. At that time she was willing to sign an agreement, but was not asked by the defendants to do so as they were satisfied of her ability and willingness to carry out her oral contract. At a later time, which had been settled upon for the delivery of the deed and completing the sale at the registry of deeds, the defendants were present, ready, able and willing to convey as agreed. Although Mrs. Lubin was not present, her attorney was there and notified the defendants that she ‘would not carry out the agreement and would not go through with the purchase.’
The agreement between the plaintiff and the defendants was that he would produce a customer for the property who was ready, able and willing to buy upon the terms stated; if the plaintiff has performed the agreement, his commission is earned. The customer produced not only must be able and willing to buy, but such willingness and ability must exist at the time when the sale is to take place. Although Mrs. Lubin was produced by the plaintiff as willing at the outset to purchase the property upon terms satisfactory to the defendants, it appears that at the time fixed for carrying out the sale she repudiated her previous oral contract and refused to purchase; in these circumstances, the plaintiff has failed to perform his...
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