Leech v. Ebers

• Decision Date: 18 December 1981
• Citation: 429 N.E.2d 79,12 Mass.App.Ct. 1004
• Parties: Robinson LEECH, Sr. et al. v. Theodore M. EBERS et al., trustees.
• Court: Appeals Court of Massachusetts

Page 79

429 N.E.2d 79

12 Mass.App.Ct. 1004

Robinson LEECH, Sr. et al. v. Theodore M. EBERS et al., trustees.

Appeals Court of Massachusetts, Hampden.

Argued Nov. 13, 1981.

Decided Dec. 18, 1981.

William A. Murray, III, Westfield, for defendants.

Peter Q. Montori, Springfield, for plaintiffs.

Before GREANEY, ROSE and PERRETTA, JJ.

RESCRIPT.

This is an action in contract in which the plaintiffs seek to recover a brokerage commission allegedly due from the defendants for services rendered in providing a purchaser for the defendants' real estate. The listing agreement provided that "if (the brokers) procure a customer, ready, willing, and able to buy said property at a (specified) sale price, or at a price or terms accepted by (the sellers), (the sellers) will pay (the brokers) a commission of 6% of the gross sale price at time of closing." The plaintiffs claimed that they had procured a buyer who was ready, willing and able to purchase the property on terms which were accepted by the defendants, but that the defendants thereafter wrongfully repudiated the agreement and sold the property to a third party. The jury returned a verdict for the plaintiffs. The defendants have appealed, claiming that the judge's refusal to charge the jury in accordance with three of their requested jury instructions constituted error. We affirm the judgment.

The defendants' first two requests sought an instruction that the quoted language in the listing agreement made consummation of a sale a condition precedent to the brokers' having earned their commission. See Tristram's Landing, Inc. v. Wait, 367 Mass. 622, 626-627, 327 N.E.2d 727 (1975); Creed v. Apog, 6 Mass.App. 365, 372, 376 N.E.2d 154 (1978), S.C. 377 Mass. 522 (1979). The judge correctly determined that the language pertaining to the commission was reasonably specific, that it did not require or admit of extrinsic explanation (see Robert Indus., Inc. v. Spence, 362 Mass. 751, 754, 291 N.E.2d 407 (1973); Sullivan Bros. Clothing, Inc. v. North Dartmouth Joint Venture, 3 Mass.App. 778, 332 N.E.2d 926 (1975); Blake Bros. v. Roche, --- Mass. ---, Mass.App.Ct.Adv.Sh. (1981) 1787, 1791, 427 N.E.2d 501), and that its proper interpretation was a matter of law for the court. See Tri-City Concrete Co. v. A.L.A. Constr. Co., 343 Mass. 425, 427, 179 N.E.2d 319 (1962), and cases cited; Daley v. J.F. White Contracting Co., 347 Mass. 285, 288, 197 N.E.2d 699 (1964). He ruled that the language did not clearly and unambiguously condition the owners' responsibility for a commission on the completion of a sale (contrast Tristram's Landing, Inc. v. Wait, supra, 367 Mass. at 625-627, 327 N.E.2d 727; Creed v. Apog, supra, 6 Mass.App. at 371-372, 376 N.E.2d 154), and that the meaning and effect of the language were governed by those cases which have held that similar provisions establish a time for payment of the commission, not a condition precedent to liability. See Gaynor v. Laverdure, 362 Mass. 828, 836, 291 N.E.2d 617 (1973), and cases cited. Both rulings were sound and required the denial of the...