Kelly v. Johnson
| Decision Date | 04 March 1927 |
| Parties | KELLY et al. v. JOHNSON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Frederic B. Greenhalge, Judge.
Action by F. Vincent Kelly and another against Charles Johnson and others. On plaintiffs' exceptions after directed verdict for defendants. Exceptions overruled.R. J. Lavelle, of Lowell (F. J. Garvey, of Lowell, on the brief), for plaintiffs.
A. S. Howard, of Lowell, for defendants.
[1] This is an action of contract to recover a real estate broker's commission. The plaintiffs' evidence tended to show that the defendant Johnson placed the property in question with them to be sold for $52,000, agreeing to pay therefor the usual commission of 3 1/2 per cent.; that they found, as a prospective purchaser, one Wolfson, and thereafter a proposed agreement for the sale of the property to him for $48,000 was signed by the defendants, but Wolfson declined to become a party to it unless a provision were added stating the amount of the rents and income of the property; that a new agreement with these additional provisions was then prepared by counsel for the purchaser, but the defendants were unwilling to become parties to this modified agreement until a clause in the following terms was added:
‘This agreement is contingent on the party of the first part [the defendants] procuring discharge of existing mortgages on payment of $33,000.’
The agreement also contained provisions for the conveyance of the property on or before October 10, 1923, and for the payment by the defendants to the plaintiffs of a broker's commission. There were two mortgages maturing in January, 1924, held by one person as security, for the aggregate principal sum of $38,000, each of which covered the property to be conveyed and other real estate. Before the date set for passing the papers, the plaintiff Kelly had seen the mortgagee and been told by him that he would give a release of the mortgages described in the agreement upon receiving $33,000 and interest. Kelly told the defendant Johnson that the mortgagee would give a partial release upon the payment of $33,000. When the parties met to pass papers, the holder of the mortgages refused to give such a release unless he were paid $33,000 with interest to the date of the maturity of the mortgages. Johnson was ready and willing to pay the principal demanded with interest to the date of payment, but in consequence of the mortgagee's demand for future interest, the defendants refused to carry through the transaction.
The evidence does not justify a finding that the plaintiffs procured a customer ready, willing and able to buy...
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...the defendants' property upon terms authorized by them. Clark v. Bonner, 217 Mass. 201. Cesana v. Johnson, 232 Mass. 444 . Kelly v. Johnson, 258 Mass. 478. Goldstein v. Ziman, 259 Mass. 430 . The evidence not warrant a finding that the services of the plaintiffs were the efficient or effect......
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