LeDonne v. Slade
| Citation | 245 N.E.2d 434,355 Mass. 490 |
| Parties | Alfred LeDONNE v. Edward C. SLADE. |
| Decision Date | 11 March 1969 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Albert E. Lamb, Malden, for defendant.
James A. McAvoy, Jr., Melrose, (Kevin D. Murphy, Melrose, with him) for plaintiff.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK and REARDON, JJ.
This is an action to recover a broker's commission for procuring a purchaser for certain real estate of the defendant. The District Court judge found for the plaintiff, the Appellate Division dismissed a report, and the defendant appealed.
The facts are those found by the District Court judge. The plaintiff made contact with one Brown, trustee of Brookfield Realty Trust. Under date of April 5, 1966, a written contract of purchase and sale was signed by the defendant, his wife, and the trustee. Conveyance was to be on June 1, 1966. The premises were to be free of all tenants. As the date for transfer approached, it was discovered that the defendant's daughter would not be able to vacate the defendant's premises and move to other hoped for premises. The plaintiff obtained Slade's signature to an extension to July 1, but could not obtain Brown's signature. Shortly before July 1, a defect was discovered in the title. The defect could be cured, but apparently not in time to clear the property for transfer prior to July 1. The result was that there was no sale. The defendant returned the deposit.
The trial judge concluded, 'I find, therefore, that plaintiff had procured a customer within the meaning of the law and that he was entitled to a commission.'
The contract contained a not unusual provision reading, 'If the seller shall be unable to give title or to make conveyance as above stipulated, any payments made under this agreement shall be refunded, and all other obligations of either party hereunto shall cease * * *.' For cases having this same provision, see Old Colony Trust Co. v. Chauncey, 214 Mass. 271, 272--274, 101 N.E. 423; Flier v. Rubin, 321 Mass. 464, 466, 73 N.E.2d 742 and cases cited; Sawl v. Kwiatkowski, 349 Mass. 712, 714, 212 N.E.2d 228.
The defendant argues that this provision, which he terms 'the contingency clause,' followed by the discovery of a flaw in the title, due to no fault of his, prevented the broker from having a cause of action. He contends that 'the broker produced a conditional buyer, a buyer who was not a ready, able and willing buyer as a matter of law.' He relies upon his admitted obligation to return the deposit. His brief states that he has been unable to find a suit by a broker involving the 'contingency clause,' but he submits that there are many cases which cannot be distinguished in principle. These arguments are legally unsound and we reject them. They do not merit further discussion. Requests numbered 1, 36, 37, 38, and 39 were rightly denied.
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