Fitzpatrick v. Gilson

• Decision Date: 04 September 1900
• Citation: 57 N.E. 1000,176 Mass. 477
• Parties: FITZPATRICK v. GILSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 477

57 N.E. 1000

FITZPATRICK v. GILSON.

Supreme Judicial Court of Massachusetts, Suffolk.

September 4, 1900

COUNSEL

John

E. Crowley, for plaintiff.

L Roger Wentworth, for defendant.

OPINION

LORING J.

In this case the presiding justice ruled that on the evidence the defendant was entitled to a verdict, and reported the case to this court. By the terms of the report judgment is to be entered for the plaintiff for $108, and interest from the date of the writ, 'if the jury would have been warranted in finding for the plaintiff.' We are of opinion that there was evidence that would have warranted such a finding. The defendant's first contention is that a broker who is employed 'to procure a loan' does not earn his commission unless the money to be borrowed is actually paid over, or a valid contract is made by which the customer procured by the broker agrees to lend the money; and that this applies to a case where (as in the case at bar) the loan is not made because, by reason of a defect in her title, the borrower is not able to give the mortgage she stipulated to give to the customer procured by the broker. We are of opinion that this contention is not correct. The duty which a broker is employed to perform is to find a customer for that for which his principal directs him to find a customer. In the case at bar it was for a loan to be made by the customer secured by a first mortgage to be made by the principal on a specified lot of land. The broker found a customer ready to make that loan, and the transaction fell through because the defendant, the broker's principal, did not have a good title to the land in question; that is to say, because of the principal's inability to produce that for which he employed the broker to get him a customer. When a broker has found a customer for that for which his principal has employed him to find a customer, the broker has performed his duty, and has earned his commission; or, as the proposition is usually stated, if the person produced by the broker is able, ready, and willing to buy, sell, or lend, as the case may be, the broker's commission is earned. McGavock v. Woodlief, 20 How. 221, 222, 15 L.Ed. 884; Green v. Lucas, 33 Law T. (N. S.) 584, 587; Middleton v Thompson, 163 Pa. St. 112, 29 A. 796; Sibbald v Iron Co., 83 N.E. 383, 384; Duclos v. Cunningham, 102 N.Y. 678, 6 N.E. 790; Fischer v. Bell, 91 Ind. 243; Vinton v. Baldwin, 88 Ind. 104, 105; Peet v. Sherwood, 43 Minn. 447, 448, 45 N.W. 859; Cheatham v. Yarbrough, 90 Tenn. 77, 15 S.W. 1076; Budd v. Zoller, 52 Mo. 238, 242, 245; Buckingham v. Harris, 10 Colo. 455, 15 P. 817. When the broker has produced a customer, his duty is at an end. So far as his rights or his duty are concerned, it is immaterial whether a contract is or is not made, or, if made, whether it is or is not performed. The broker's right to a commission is no more dependent upon or affected by the fact that a contract is or is not drawn up and executed than it is by the fact that the contract, if drawn up, is or is not carried into effect. Making or not making a contract with the customer produced, enforcing or not enforcing a contract, if made, are matters for the broker's principal to do or not to do, as his ability and inclination determine. They are matters with which the broker is not concerned, and on which his right to a commission is not dependent. That it is no part of a broker's duty to draw up and see to the execution of a contract between his principal and the customer produced by him is settled. See Cook v. Welch, 9 Allen, 350; Desmond v. Stebbins, 140 Mass. 339, 342, 5 N.E. 150; Middleton v. Thompson, 163 Pa. St. 112, 29 A. 796; Keys v. Johnson, 68 Pa. St. 42, 43; Duclos v. Cunningham, 102 N.Y. 678, 6 N.E. 790. That a broker's right to a commission is not defeated if a contract is made and not carried out by reason of his principal's inability to perform, see Green v. Lucas, 33 Law T. (N. S.) 584; Sweeney v. Gas Co., 130 Pa. St. 193, 18 A. 612; Middleton v. Tompson, 163 Pa. St. 112, 29 A. 796; Holly v. Gosling, 3 E. D. Smith, 262; Peet v. Sherwood, 43 Minn. 447, 45 N.W. 859; Cheatham v. Yarbrough, 90 Tenn. 79, 15 S.W. 1076. The cases of Holden v. Starks, 159 Mass. 503, 34 N.E. 1069, Witherell v. Murphy, 147 Mass. 417, 18 N.E. 215, and Washburn v. Bradley, 169 Mass. 86, 47 N.E. 512, are inconsistent with any other view. In Holden v. Starks, 159 Mass. 503, 34 N.E. 1069, it was held that the broker earned his commission where an oral agreement for the sale of land was made, which could not be enforced by reason of the statute of frauds. In Witherell v. Murphy, 147 Mass. 417, 18 N.E. 215, it was held that a broker employed to find a purchaser on terms stated by his principal at the time of his employment was entitled to his commission when he procured a customer who was able, ready, and willing to buy on the terms stated, though no contract was actually made because the broker's principal refused to stand by his offer when it was communicated to him. To the same effect, see Fischer v. Bell, 91 Ind. 243; Buckingham v. Harris, 10 Colo. 455, 15 P. 817; Kock v. Emmerling, 22 How. 69, 16 L.Ed. 292; Moses v. Bierling, 31 N.Y. 462; Vinton v. Baldwin, 88 Ind. 104. It is true that in Witherell v. Murphy the broker wrote out a contract, and delivered it to the customer; but the writing out of that contract at the time when it was written out, namely, after the principal had refused to stand by his offer, could not enlarge the plaintiff's rights to a commission. In Washburn v. Bradley, 169 Mass. 86, 47 N.E. 512, where a broker was employed to get a person to take the defendant's lease off his hands, and the broker procured a person who covenanted to do so, but who refused to do so because of misrepresentations of the defendant, the broker's principal, the making of the contract did not add to the...