Frankina v. Salpietro
Decision Date | 29 November 1929 |
Citation | 269 Mass. 292,168 N.E. 739 |
Parties | FRANKINA v. SALPIETRO. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Division, District Court of Eastern Middlesex.
Action by Joseph Frankina against James Salpietro. Finding for plaintiff, and from an order of the Appellate Division dismissing a report, defendant appeals. Affirmed.
J. J. Flynn, Flynn & Flynn, all of Waltham, for appellant.
B. F. Thornburg, of Waltham, for appellee.
This is an action of contract brought in the District Court to recover a real estate broker's commission. The declaration contains two counts for the same cause of action. The first count alleges an express contract by which the amount of the commission was fixed. The second count is on a quantum meruit.
The following requests for rulings made by the defendant were refused:
The trial judge made the following findings of fact: There was a finding for the plaintiff, a report to the Appellate Division which was dismissed, and an appeal to this court from the order dismissing the report.
Upon the subsidiary findings the plaintiff was entitled to his commission if he procured a customer who was able, willing and ready to purchase the property on the defendant's terms even though the sale was never consummated (Walker v. Russell, 240 Mass. 386, 389, 390, 134 N. E. 388;Buono v. Cody, 251 Mass. 286, 290, 291, 146 N. E. 703;Hall v. Kotowski, 251 Mass. 494, 146 N. E. 717) or the customer accepted by the defendant. Witherell v. Murphy, 147 Mass. 417, 18 N. E. 215;Fitzpatrick v. Gilson, 176 Mass. 477, 478, 57 N. E. 1000;Goodnough v. Kinney, 205 Mass. 203, 91 N. E. 295;Green v. Levenson, 241 Mass. 223, 135 N. E. 114. In this case, however, the findings warranted the inference that ...
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...the exchange, however, it could have been inferred that the terms thereof were acceptable to the defendant. Compare Frankina v. Salpietro, 269 Mass. 292, 295, 168 N.E. 739. And it could have been found that the defendant's to the plaintiff was not withdrawn prior to the exchange. The eviden......
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