Cadigan v. Crabtree

• Decision Date: 05 September 1901
• Parties: CADIGAN v. CRABTREE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 474

61 N.E. 37

CADIGAN v. CRABTREE.

Supreme Judicial Court of Massachusetts, Suffolk.

September 5, 1901

COUNSEL

Whipple, Sears & Ogden, for plaintiff.

Frank Paul, for defendant.

OPINION

LORING J.

1. The presiding judge was right in directing a verdict for the defendant on the fifth and sixth counts. There was no evidence which would have warranted a verdict for the plaintiff. The most that could have been found in favor of the plaintiff was that the defendant employed him as a broker, in September, 1898, to find for her a purchaser for the Hotel Reynolds, and that it was then stated that he was the only broker in the matter. The plaintiff's employment in the matter was brought about by one Gilman, the agent in Boston of the defendant, who did not live in that city. The plaintiff testified that Gilman 'said that he thought that Miss Crabtree, from his conversation with her, would sell the property for $800,000. Under a suggestion that I ask $815,000, I started out.' The plaintiff got several offers,--one for $750,000 in cash, and another for $750,000 part in cash and part in 'other property in trade.' These offers were reported to the defendant personally between November 7th and November 11th of the same year, and were refused. The defendant then fixed her price at $1,100,000, which the plaintiff testifies 'practically stopped the negotiations.' On February 25, 1899, the defendant notified the plaintiff that she was willing to take $850,000 for the property; but on March 1st following she revoked the plaintiff's authority to sell the estate at all, and notified him that she had put the property in the hands of another broker for sale, to the exclusion of the plaintiff and every one else. No sale of the property has been made. It appears that the defendant has paid the plaintiff the amount he was out of pocket in the matter. The plaintiff's contention is that he is entitled to recover damages from the defendant for preventing him from earning a commission by finding a person who would buy the estate, and on the ground that he was entitled to a reasonable time in which to find a customer and his authority to do so was revoked before that time had passed.

Until February 25th, when the defendant put a price upon the property, it is plain that the defendant could revoke the plaintiff's employment without coming under any liability to the plaintiff for so doing. We take February 25th as the date when a price was put upon the property, because the plaintiff's contention was that the price of $1,100,000 put upon the property in the early part of November could not seriously be regarded as a price that could be obtained for the property. Where the owner of property employs a broker to bring him an offer for the purchase of it, without naming a price at which he is willing to sell,--that is to say, where the owner of property employs a broker to bring him an offer which he is to pass upon after it is brought to him,--there can be no implied agreement or understanding that the broker is to be entitled to a reasonable time in which to procure such an offer. In such a case the owner has a right to reject every offer brought to him, as was held in Walker v. Tirrell, 101 Mass. 257, 3 Am. Rep. 352; and it is plain that under those circumstances he could decide not to accept any offer, and to dismiss the broker altogether. But the right of an owner to put an end to the broker's employment is based on a consideration which goes deeper than that, and includes the case where a price is named by the owner at which he is willing to sell his property. That consideration is the nature of a brokerage commission. The very essence of a brokerage commission is that it is dependent upon success, and that it is in no way dependent upon, or affected by, the amount of work done by the broker. A brokerage commission is earned if the broker, without devoting much or any time to hunting up a customer, succeeds in procuring one; and it is equally true, on the other hand, not only that no commission is earned if a broker is not successful, but a broker is not entitled to any compensation, no matter how much time he has devoted to finding a customer, provided a customer is not found. See, in this connection, Sibbald v. Iron Co., 83 N.Y. 378, 383, 38 Am. Rep. 415. The promise to pay a brokerage commission, if a customer is found to purchase at a stated price, is not the ordinary employment of labor, but is more in the nature of an offer, namely, an offer to pay a commission if a person is produced who buys at the price named; and, like any other offer, it can be withdrawn at any time, without regard to the fact that work has been done by a person in reliance on it, provided the work done has not brought the person within the terms of the offer. A broker who has not been successful in procuring a customer for his principal is never entitled to recover on a quantum meruit for work done. Where a broker has done work, but another broker has closed the trade, it was held that, under the peculiar circumstances of Dowling v. Morrill, 165 Mass. 491, 43 N.E. 295, not that he could recover on a quantum meruit for work done, but that a commission was earned if his work was in fact the efficient and predominating cause of the sale; and so, where a customer is found to purchase property, but the trade is not made or is not carried through because the broker's principal is not able, or does not choose, to convey the property for which he employed the broker to find a purchaser, it is now settled that the broker's remedy is to sue his principal for a commission, and that in such an action he can recover his commission (see Fitzpatrick v. Gilson, 176 Mass. 477, 57 N.E. 1000, and cases there cited), although at one time countenance was given to the proposition that in such a case the remedy of the broker was on a quantum meruit for work done (see Drury v. Newman, 99 Mass. 256, 258; also Walker v. Tirrell, 101 Mass. 257, 258, 3 Am. Rep. 352, citing with approval Prickett v. Badger, 1 C. B. [N. S.] 296).

2. The defendant's exception to the refusal of the court to direct a verdict for the defendant upon the fourth count must be sustained. It appears that on or about November 2, 1898 the plaintiff was asked, as a broker, to find a tenant for the Hotel Reynolds, the property which he had been trying to sell for the defendant in the two previous months of September and October. The hotel was then under lease to one Reynolds, and that lease apparently ran out on January 1, 1899. In the latter part of November the plaintiff brought the matter to the attention of Gould & Pollo. Gould & Pollo then suggested that they might take a lease at $25,000 a year, the hotel being put in running order at the expense of the lessor. This was rejected by the defendant. Later the plaintiff secured a proposal from one Mann to take a lease of the hotel. This was accepted by the defendant, and a lease was drawn up. This lease, however, fell through on December 20, 1898, for some reason not disclosed. The terms of this lease were $25,000 for the first five years, and $30,000 for the next five years, the lessor to lay out $35,000 in repairs and alterations, and to receive 6 per cent. interest on that expenditure. On December 22d or 23d, a few days after the negotiations for the Mann lease had fallen through, the plaintiff again approached Gould & Pollo on the subject, and they came to his office and saw there some plans of the hotel sent to the plaintiff's office by Mr. Gilman, the defendant's agent, for that purpose. We understand that these plans were plans showing the alterations to be made in the hotel under the Mann lease. Gould & Pollo were then told by the plaintiff what the terms of...