Green v. Levenson

• Decision Date: 14 April 1922
• Citation: 135 N.E. 114,241 Mass. 223
• Parties: GREEN v. LEVENSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 223

135 N.E. 114

GREEN

v.LEVENSON.

Supreme Judicial Court of Massachusetts, Suffolk.

April 14, 1922.

Exceptions from Superior Court, Suffolk County; Jabez Fox, Judge.

Action of contract by Benjamin H. Green against Henry H. Levenson for commissions for procuring a purchaser for real estate. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Plaintiff testified that defendant told him that, if plaintiff and defendant's brother, Joseph Levenson, came to an agreement regarding the sale, defendant would sign an agreement of sale containing such terms as had been agreed upon by his brother, that the brother authorized him to negotiate a sale for three per cent. of the sale price, that plaintiff found a purchaser named Brandt ready, willing and able to purchase on the terms and conditions stated by Joseph Levenson, but that defendant refused to enter into an agreement of sale for the agreed price. Defendant subsequently agreed to sell the property to one Seligman, and it was plaintiff's contention that Seligman represented Brandt. Defendant apparently claimed that plaintiff's ostensible status was that of a prospective purchaser and not that of a broker, and that the customer produced by plaintiff was only willing to pay for an option on the property.Edward M. Dangel and Robert Gallagher, both of Boston, for plaintiff.

Dunbar, Nutter & McClennen, of Boston (J. J. Kaplan and John E. Peakes, both of Boston, of counsel), for defendant.

BRALEY, J.

The defendant's first contention on his motion for a directed verdict is that the plaintiff failed to perform the service for which he was employed because the customer whom he produced was willing only to pay a sum of money to purchase the right to acquire the property, and there could be no recovery of a commission. But the jury well could find on the evidence of the plaintiff that the plaintiff and the defendant, acting by his agent Joseph Levenson, authorized the plaintiff to negotiate a sale of the land for which he was to receive a commission of ‘three per cent.’ on the ‘sale price,’ and that acting under the agreement he found ‘a purchaser by the name of Brandt who was ready, able and willing to purchase on the terms and conditions stated.’ The defendant however then refused to enter into the agreement of sale at the price fixed by Joseph Levenson. It appeared that during the negotiations between the plaintiff and Brandt the defendant claimed to have sold the property to one Seligman, and the judge when referring to this aspect of the case gave the following instructions to which the defendant took no exceptions:

‘So that as to what occurred subsequently as to the fact that Mr. Seligman subsequently executed an agreement to buy the property, that he was in fact at that time the representative of Mr. Brandt in the...