Buono v. Cody

• Decision Date: 27 February 1925
• Citation: 146 N.E. 703,251 Mass. 286
• Parties: BUONO v. CODY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 286

146 N.E. 703

BUONO

v.CODY.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 27, 1925.

Exceptions from Superior Court, Suffolk County; Franklin T. Hammond, Judge.

Action of contract by Joseph J. Buono against James F. Cody (alias), with trustee process. Verdict for plaintiff. After verdict, judge entered verdict for defendant, and plaintiff excepts. Exceptions sustained. Judgment for plaintiff on verdict.J. C. Coughlin, of Boston, for plaintiff.

N. Barnett, of Boston, for defendant.

RUGG, C. J.

This is an action of contract to recover a commission for procuring a purchaser for real estate. At the close of the evidence the defendant moved that the jury be directed to return a verdict for the defendant. No action was taken on that motion, but the case was submitted to the jury with appropriate instructions. After a verdict had been returned for the plaintiff, but before it was recorded, the judge reserved leave with the assent of the jury to enter a verdict for the defendant if, upon the exceptions taken or the questions of law reserved, the trial court or the Supreme Judicial Court should decide that a verdict for the defendant ought to have been entered.

[1] It has been argued that this procedure was unwarranted because it does not appear that exception had been alleged to any ruling or direction, or that any question of law had been reserved in the course of the trial, and that hence the conditions prerequisite according to G. L. c. 231, § 120, for such action by the judge, did not exist. That question is not open on this record because no exception was taken to this procedure.

[2] Subsequently the judge allowed a motion of the defendant to the effect that a verdict be entered in his favor in accordance with leave reserved. The plaintiff excepted. The question is thus presented whether there was evidence in its aspect most favorable to his contentions to support a verdict for the plaintiff. Exception to the allowance of this motion without further specification was sufficient to raise this question. The bill of exceptions is in proper form to present that question.

There was testimony tending to show that the defendant came to the office of the plaintiff, a real estate broker, with a list of property which he wanted to sell, and that inquiry was made about a ten-apartment house; that the defendant said that the price was $54,000; that there was a mortgage for $44,000 on it, and that he, the defendant, was owner of the building. The plaintiff said, ‘Then I am entitled to full commission in case I should sell this building?’ The defendant replied, ‘Absolutely.’ The plaintiff took a prospective customer to see the property several times. He then telephoned to the defendant that his prospective customer was interested and was ready to pay a deposit, and inquired if it was all right to take a deposit of $500. The defendant said, ‘Go ahead.’ The plaintiff then drew a contract between his customers and himself, acknowledging receipt of the deposit of $500 toward the purchase of the property and stating the terms of purchase to be, price $54,000, of which, $44,000 was on a first mortgage to run for five years, $4,500 was to be paid in cash on the day of passing papers, and the balance of $5,000 was to remain on a second mortgage at 6 per cent., interest payable quarterly, to be paid within five years. Three copies of the agreement were made, of which one was given to the purchaser, one to the defendant and one kept by the plaintiff. When the agreement was shown to the defendant on the day following its execution, he made no objection to it and took it away with him. At the same time the plaintiff said that his customer ‘would be ready to complete the deal and pass the papers' and would want to engage a lawyer to look up the title. The defendant said:

‘It is all right. We will get together and give you the old deed to look up the title.’

Before this agreement was signed or the deposit taken, the plaintiff gave to the defendant its full details as proposed, and asked if it was all right to go ahead, and the defendant replied: ‘It is all right; go ahead.’ There was nothing in the agreement as to the person who was to take the second mortgage, because the defendant ‘said he would take care of the financial part himself.’ There was some delay in getting a deed from the defendant by which the title might be searched and after several days the plaintiff said to the defendant:

‘If this thing isn't going through, please tell me, so that I can give my man his money back.’

To this the defendant replied:

‘No; he has got to live up to his agreement; you shouldn't give him the money back. I will bring you that deed. I will get everything fixed up now in a very short time.’

The defendant testified that:

‘If the plaintiff had secured a customer who met the owner's terms, he was entitled to a commission whether or not the owner later refused to sell.’

[3] There was testimony tending to show that a quite different contract was made between the plaintiff and the defendant; that the defendant said he was merely acting as agent for the owner, who never agreed to the terms offered. The weight of the evidence is of no consequence, now. That was entirely for the jury.

[4] If the contract was found to be that the plaintiff was to have his commission if he sold the property, ‘he was not obliged to show that an actual transfer had been made, but that his duty was done when be produced a customer who was able, ready and willing to pay the defendant's price, and whom the defendant had accepted. Fitzpatrick v. Gilson, 176 Mass. 477, 57 N. E. 1000, and cases there cited.’ Taylor v. Schofield, 191 Mass. 1, 4, 77 N. E. 652;Cohen v. Ames, 205 Mass. 186, 188, 91 N. E. 212;Willard v. Wright...