Leland v. Barber

• Decision Date: 13 September 1917
• Citation: 228 Mass. 144
• Parties: PERCY F. LELAND v. ELBRIDGE C. BARBER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 144

PERCY F. LELAND v. ELBRIDGE C. BARBER.

Supreme Judicial Court of Massachusetts, Middlesex.

September 13, 1917

January 11, 1917.

Present: RUGG, C J., LORING, BRALEY, DE COURCY, & CARROLL, JJ.

Agency, Real estate broker, Commission. Contract, Performance and breach.

In an action by a real estate broker to recover a commission for procuring a purchaser for the defendant's farm, it was held, that the judge, who at the request of the defendant had given a ruling that the plaintiff could not recover unless by the time agreed he produced "a customer ready, able and willing to enter into a binding, that is, written, contract to take the property," was right, under the circumstances disclosed by the evidence, in modifying the ruling by stating that he did not intend to rule "that the actual physical presence of the customer at the time and place was necessary."

It is not a universal rule that a real estate broker cannot earn a commission for procuring a purchaser for his customer's land without obtaining a binding contract signed by the purchaser. The signature of the purchaser is only a condition precedent to the payment of a commission when it is made so expressly by the broker's contract of employment or such a condition fairly is to be implied from that contract.

CONTRACT to recover $435 as a commission for services as a real estate broker in procuring a purchaser for the defendant's farm in Framingham and Ashland. Writ dated August 7, 1910.

In the Superior Court the case was tried before Morton, J., without a jury. The facts as found by the judge are stated in the opinion. At the close of the evidence the defendant asked the judge to make the following rulings:

"1. That the plaintiff cannot recover unless before noon on Tuesday August 3, 1915, he produced to the defendant a customer ready, able and willing to enter into a binding, that is written, contract to take the property.

"2. That the plaintiff cannot recover unless by noon on Tuesday, August 3, 1915, he was able to and did put the defendant in a position where the defendant could by acceptance of an offer or otherwise have a purchaser legally bound to take the property.

"3. That the plaintiff cannot recover unless by noon on Tuesday, August 3, 1915, the defendant either (1) had a valid and binding contract by some purchaser to take the property or else (2) was responsible by his own refusal to proceed or in some other way for not having such a contract.

"4. That the defendant was entitled on noon Tuesday, August 3, 1915, either to have a good contract for the sale of his property through Mr. Leland or to be free to sell to some one else."

The judge refused to make the second, third and fourth of these rulings, stating that he interpreted these requests as calling for a ruling that the plaintiff was under a legal obligation to present to the defendant a legal, binding contract to purchase, signed by the customer; but the judge found and ruled that such was not the intention of the parties. The judge made the ruling numbered one, stating that he did not intend to rule thereby that the actual physical presence of the customer at the time and place was necessary. The defendant excepted to the judge's refusals to rule as requested and to the ruling as given upon the first request.

The judge found for the plaintiff and assessed damages in the sum of $435 with interest from the date of the writ. The defendant alleged exceptions.

A. R. Graustein, (A.

Berkowitz with him,) for the defendant.

C. C. Mellen, for the plaintiff.

RUGG, C. J. This is an action to recover a commission on a sale of real estate. It was tried before a judge of the Superior Court, who found the facts and made a finding for the plaintiff. These facts must be accepted as true, for they are supported by the evidence,...