John T. Burns & Sons v. Brasco
| Decision Date | 02 April 1951 |
| Citation | 327 Mass. 261,98 N.E.2d 262 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | JOHN T. BURNS & SONS, Inc. v. BRASCO. |
Thomas F. Donnelly, Newton, for plaintiff.
Julian L. Yesley, Boston, for defendant.
Before QUA, C. J., and LUMMUS, SPALDING, WILLIAMS and COUNIHAN, JJ.
Under date of May 10, 1946, the defendant and the plaintiff by its employee, one Roche, signed the following agreement:
'Exclusive Sale or Rental Agreement
notice in writing. If the said premises shall be sold within six months after the termination of this Agency to anyone whose name shall have been submitted to us during the term of, or at the expiration of, this exclusive listing by you, your commission shall be deemed to have been earned.
'The price at which the property is to be offered is $15,000 but any offers which you have submitted to you will be taken up with me/us and a decision of acceptance or rejection will be made by me/us within 48 hours of the time such offer is submitted to me/us in writing.
'Name: s/Leo Brasco, Jr.
'Accepted: John T. Burns & Sons, Inc. by: L. J. Roche.'
Roche testified that during the period of one month from the date of the agreement he advertised the property for sale in a newspaper, visited it a few times, and brought to the defendant a customer who offered $12,000 for the property, which the defendant refused; that within the month the defendant told Roche that the defendant had a customer who was willing to pay more and who had given the defendant a deposit of $100; that Roche asked the defendant to turn over this customer to him; that the defendant said he 'would rather not,' as it would interfere with the sale; but that the defendant would pay the plaintiff a commission.
Both Roche and the defendant testified that Roche told the defendant that the agreement was 'for one month.' The defendant, further testifying, denied having told Roche that he had received a deposit of $100 from anybody or that he would pay any commission. He testified that after the expiration of one month from the date of the agreement he called the plaintiff and stated that the agreement was no longer in effect; and that he received a deposit from one Roseman some time after the month had expired. It appeared that the defendant sold the property to Roseman, who was not the plaintiff's customer, and that papers were passed on July 23, 1946.
The first two counts of the plaintiff's declaration were to recover a...
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...323 Mass. at 140--141, 80 N.E.2d 484; Coan v. Holbrook, 327 Mass. 221, 223, n. 1, 97 N.E.2d 649 (1951); John T. Burns & Sons, Inc. v. Brasco, 327 Mass. 261, 263, 98 N.E.2d 262 (1951). The second factual distinction is that the plaintiff's line of cases is grounded on the concept that the pr......
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