Bruce v. Meserve

• Decision Date: 27 November 1917
• Citation: Bruce v. Meserve, 228 Mass. 463, 117 N.E. 830 (Mass. 1917)
• Parties: BRUCE v. MESERVE.
• Court: Supreme Judicial Court of Massachusetts

228 Mass. 463

117 N.E. 830

BRUCE

v.MESERVE.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 27, 1917.

Exceptions from Superior Court, Middlesex County; John H. Hardy, Judge.

Action by Charles S. Bruce against Ida M. Meserve. There was verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment ordered to be entered for defendant.

John L. Sheehan and Fredk. W. Miller, Jr., both of Boston, for plaintiff.

Williams & Fuller, of Boston, for defendant.

RUGG, C. J.

This is an action by a broker to recover a commission for procuring a customer to buy the defendant's real estate. There was evidence from which it might have been found, as the view most favorable to the plaintiff, that he was appointed by the defendant exclusive agent to get ‘a purchaser for the sale of her Massachusetts avenue property’; that he was familiar with the property and told her it was well worth eleven or twelve thousand dollars; that he secured an offer of eleven thousand dollars from one Viano, and that when this was communicated to the defendant she replied, ‘When he offers $11,000 for it, he will give $11,700;’ that subsequently the plaintiff was told that an agreement had been made with Viano for the sale of the property for $12,500; but the plaintiff had no participation in the making of it. The facts about the alleged agreement were that the defendant and Viano had some negotiations, as a result of which Viano orally offered $12,500 and she accepted that offer. Thereafter he prepared a paper, which she signed and which he did not sign, of this tenor:

‘I agree to sell to Mr. Felix Viano my property on 454 Mass. Ave., Lexington, twelve thousand five hundred dollars, and I receive five hundred dollars as deposit and as part payment. Balance to be payed June 1, 1916, I agree to give clear title free from all incomance, and also a plan of land to show about 75 feet front.’

The $500 was paid to her. It appeared on a survey of the lot that its frontage on the street was seventy-one and one-tenth feet. Viano refused to take the lot unless a reduction was made in the price ‘at the rate of about $166 a foot for four feet, which he said were missing.’ The defendant declined to make the reduction. Viano has brought an action against her to recover the five hundred dollars paid by him.

The plaintiff is not entitled to recover on these facts. The plaintiff's argreement in substance was that he should procure a purchaser able, ready and willing to buy the defendant's property at a price satisfactory to her. It would not have been necessary for him to procure the execution of a contract to buy binding upon the purchaser. Fitzpatrick v. Gilson, 176 Mass. 477, 57 N. E. 1000;Leland v. Barber, 228 Mass. 144, 117 N. E. 33. He did not perform that agreement. If it be assumed that Viano was able to buy the land, the only offer which the plaintiff secured from him was $11,000, and that offer the defendant refused. If it be also assumed that she stated to the plaintiff that an offer of $11,700 would be accepted, the plaintiff did not act on that statement or at least did not procure that offer and manifestly it subsequently was withdrawn by her before the conclusion of her negotiations with Viano.

The plaintiff's agreement with the defendant would have been performed to the extent that he as exclusive agent to get a buyer might recover, if the defendant had made either an actual sale to the customer introduced by him, or an agreement binding such customer to buy. Rice v. Mayo, 107 Mass. 550;Ward v. Cobb, 148 Mass. 518, 20 N. E. 174,12 Am. St. Rep. 587;Johnson v. Holland, 211 Mass. 363, 97 N. E. 755;Hutchinson v. Plant, 218 Mass. 148, 153, 105 N. E. 1017. But she did not do either. There...