John T. Burns & Sons, Inc. v. Hands

• Decision Date: 03 July 1933
• Citation: 186 N.E. 547,283 Mass. 420
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: JOHN T. BURNS & SONS, INC., v. HANDS et al. SAME v. TEMPLE.

283 Mass. 420

186 N.E. 547

JOHN T. BURNS & SONS, INC.,

v.HANDS et al.

SAME

v.TEMPLE.

Supreme Judicial Court of Massachusetts, Middlesex.

July 3, 1933.

Appeal from District Court of Newton; Thomas Weston, Judge.

Separate actions by John T. Burns & Sons, Incorporated, against Howard A. Hands and others, and against Florence M. Temple. Judgment for plaintiff was reversed by the Appellate Division and judgment rendered for defendants, and plaintiff appeals.

Affirmed.

J. J. Flynn, of Waltham, for appellant.

P. H. Ready, of Lowell, for appellees.

LUMMUS, Justice.

These are two actions of contract, tried together, to recover from the defendants in the first case (hereinafter spoken of as Hands) $260, and from the defendant in the second case (hereinafter spoken of as Temple) $444, as a real estate broker's commissions upon the sale by the defendants to each other of certain real estate. The trial judge found for the plaintiff in each case. The only question at issue was whether the plaintiff was the efficient cause of the sales. The Appellate Division reversed the decision, and ordered judgment for the defendants in each case, on the ground that the trial judge should have ruled, as requested by the defendants, that there was no evidence that the plaintiff was the efficient cause of the sales. Jones v. Clark, 272 Mass. 146, 172 N. E. 250.

Temple desired to sell several houses in Wellesley. Hands desired to exchange a Watertown house for a larger house elsewhere. The plaintiff, who had no exclusive agency for either, showed Hands two houses belonging to Temple on Tennyson Road and Whittier Road in Wellesley. During the showing of these houses the plaintiff pointed out to Hands at a distance the ‘Cape Cod’ house owned by Temple on Fairbanks Avenue in Wellesley, which Temple subsequently exchanged for the Watertown house, but Hands did not then examine it. Later, Hands examined the ‘Cape Cod’ house in the absence of the plaintiff, and told the plaintiff that the ‘Cape Cod’ house was very satisfactory but that its price, $12,500, was somewhat high. While the parties were talking about the Whittier Road house, the plaintiff induced Temple to examine the Watertown house, and as a result Temple offered to take the Watertown house at a valuation of $6,500 in exchange for ‘one of his houses.’ No one else ever showed the Watertown house to Temple. The plaintiff never talked to Temple about a purchase by Hands of the ‘Cape Cod’ house, and never made any effort to get Temple and Hands together as to that house. The plaintiff had other houses which it showed to Hands in the endeavor to make a sale.

With matters in this situation, another real estate broker named Ready came to Hands, said that he had sold for Temple the Whittier Road House, and took Hands to the ‘Cape Cod’ house. There Hands and Temple, after some negotiation, signed a contract for the sale of the ‘Cape Cod’ house to Hands for $11,100, Temple to take the Watertown house in exchange at a price of $6,500, which contract was performed.

Complete analysis of the rights of the parties is not required, for one point common to the two cases determines them in favor of the defendants. The offer which an owner of property makes to a broker listing the property for sale is ordinarily to pay a commission upon the accomplishment by the broker of a specified thing. Elliott v. Kazajian, 255 Mass. 459, 152 N. E. 351;Walsh v. Grant, 256 Mass. 555, 557, 152 N. E. 884, 47 A. L. R. 852;Glendon v. Pyne, 275 Mass. 528, 529, 176 N. E. 602. Ordinarily that thing is the procurement of a customer able, ready and willing to buy on the owner's terms. Walker v. Russell, 240 Mass. 386, 134 N. E. 388;Simon v. Meyer, 261 Mass. 178, 158 N. E. 537;Frankina v. Salpietro, 269 Mass. 292, 168 N. E. 739;Higgins v. Ginsburg & Goodman, Inc., 278 Mass. 497, 180 N. E. 233;Herbert v. Jaffe, 281 Mass. 202, 183 N. E. 259. Sometimes it is the completion of a contract of sale or a transfer of title, upon specified terms or upon terms acceptable to the owner. Cadigan v. Crabtree, 179 Mass. 474, 484, 61 N. E. 37,55 L. R. A. 77, 88 Am. St. Rep. 397;Cohen v. Ames, 205 Mass. 186, 187, 188, 91 N. E. 212;Carpenter v. Blake, 251 Mass. 47, 146 N. E. 224;Goldman v. Eisenberg, 256 Mass. 566, 152 N. E. 879;Goldstein v. Ziman, 259 Mass. 430, 156 N. E. 673;Zakszewski v....