Canton v. Thomas
| Decision Date | 22 September 1928 |
| Citation | 264 Mass. 457,162 N.E. 769 |
| Parties | CANTON et al. v. THOMAS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Frederick J. McLeod, Judge.
Action by James A. Canton and another against Murchie R. Thomas to recover broker's commission for procuring a purchaser for defendant's realty. Plaintiffs procured a purchaser, who entered into written agreement with defendant at price and terms given by defendant to plaintiffs. Judgment for plaintiffs, and defendant brings exceptions. Exceptions overruled.
Edward M. Dangel and Leo E. Sherry, both of Boston, for plaintiffs.
L. A. Rogers and L. J. Gilbride, both of Boston, for defendant.
This is an action of contract to recover a broker's commission. The plaintiffs and defendant entered into a contract in writing wherein, after recitals of the execution on the same date of a written agreement by the defendant to sell specified real estate to one Cohen for a stipulated price and of the effective instrumentality of the plaintiffs ‘in putting through the sale,’ ‘the party of the first part [the defendant], in consideration of the parties of the second part [the plaintiffs] procuring a purchaser for the property above described, the party of the first part does hereby agree to pay to the parties of the second part the sum of $1,632 when papers are passed.’ The agreement between the defendant and Cohen is set out in the record and confirms the recital in the contract here in suit.
[1] The case is governed by Alvord v. Cook, 174 Mass. 120, 124, 125, 54 N. E. 499. In that case a contract in writing was made whereby the owner was to pay to the broker the stipulated commission ‘at the date’ when an agreement in writing for the sale of real estate, executed on the same day between the owner and a purchaser, ‘is carried into effect.’ The trial judge refused to consider ‘oral testimony to enlarge, vary, or contradict the writing,’ but considered ‘evidence to show the situation of the parties when the writing was made, to obtain from it * * * aid * * * in the application and interpretation of the contract,’ and he construed the contract to mean that the payment of commission to the broker was not conditional upon the actual carrying into effect of the contract between the owner and the purchaser. Those rulings were held to be right for reasons there set out at length. The contract was held to fix a time beyond which the broker need not wait, and not to state a condition of the payment of the commission. See, also, to the same general effect, Rosenthal v. Schwartz, 214 Mass. 371, 101 N. E. 1070.
We are unable to perceive any substantial difference between a contract to pay a broker's commission when an agreement ‘is carried into effect’ and a similar contract to pay when ‘papers are passed’ pursuant to such an agreement. A condition of the payment of the commission would be expressed if the words ‘if and when papers are passed’ had been used in the contract here in issue in place of the words ‘when papers are passed.’ In somewhat similar cases, ameliorating circumstances often are found which...
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...supra 349 Mass. at 726, 212 N.E.2d 240 (requiring the precise words "condition precedent" or their equivalent); Canton v. Thomas, 264 Mass. 457, 458-459, 162 N.E. 769 (1928) (the phrase "if and when," but not "when" alone, creates a condition precedent). See also Restatement (Second) of Con......
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