Lieberman v. Cohn
| Decision Date | 27 November 1934 |
| Parties | LIEBERMAN et al. v. COHN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Keating Judge.
Action of contract by Samuel Lieberman and others against Abraham I. Cohn. Verdict for plaintiffs in the sum of $3,210.09, and defendant brings exceptions.
Exceptions overruled.
Edward M. Dangel, L. E. Sherry, and L. Aronson, all of Boston, for plaintiffs.
J. N. Welch and H. Cohn, both of Boston, for defendant.
This is an action of contract to recover a real estate broker's commission. There was a verdict for the plaintiff. The case comes before us on the defendant's exceptions, the only one of which is argued being an exception to the denial of a motion for a directed verdict.
The motion was denied rightly.
The evidence tended to show that the defendant offered to pay a commission to the plaintiffs for procuring a customer able, ready and willing to purchase real estate of the defendant upon the defendant's terms. But the defendant contends that the evidence did not warrant a finding that the terms of sale were fully agreed upon between the defendant and the prospective customer before the defendant withdrew from the negotiations and, consequently, that the defendant could so withdraw without incurring any liability to the plaintiffs for a commission. See Zakszewski v. Kurovitzky, 273 Mass. 448, 173 N. E. 503.
A finding that the terms of sale were fully agreed upon before the defendant withdrew could have been made. There was evidence of oral negotiations between the defendant and one Spevak, procured as a prospective customer by the plaintiffs, for an exchange of real estate owned by them subject to mortgage on the basis that Spevak, in addition to conveying his real estate to the defendant, subject to the mortgage thereon, would make a deposit of $500 on the day of (or the day before) the signing of an agreement, pay $2,500 cash on the passing of papers, and give to the defendant a second mortgage of the real estate conveyed by him to Spevak ‘for $2,500 for one year, payable $100 monthly, at 6% interest.’ There was evidence, however, that the terms of the bargain between the defendant and Spevak were to be reduced to writing and that before they were reduced to writing-as they never were-the defendant refusedto go on with the exchange on the terms above stated, insisting that Spevak should pay the entire amount of $5,500 in cash; and there was no evidence to the contrary.
The defendant argues that there was never more than a qualified acceptance by him of the terms of the proposed exchange. But there was testimony to the effect that, in the course of the oral negotiations, the ‘bargain’ between the defendant and Spevak was ‘closed’ on the terms above stated; that the defendant said to Spevak, ‘The deal is made,’ and told one or both of the plaintiffs that they were entitled to be paid for their work; that the following day the defendant again looked at Spevak's real estate, told him, ‘Everything is perfect,’ was shown by Spevak his check for the amount of the deposit and said to Spevak, ‘Well, everything is O. K.’ On this evidence, considered in connection with the other evidence in the case, it could have been found that the defendant accepted Spevak as a customer on the defendant's terms without waiting to have the terms of the bargain embodied in a writing constituting a binding agreement between the defendant and Spevak. Buono v. Cody, 251 Mass. 286, 146 N. E. 703;Frankina v. Salpietro, 269 Mass. 292, 168 N. E. 739. Proof of a binding agreement between the defendant and Spevak was not necessary. Fitzpatrick v. Gilson, 176 Mass. 477, 478, 479, 57 N. E. 1000;Green v. Levenson, 241 Mass. 223, 135 N. E. 114. And though the circumstance that the parties were to go to a lawyer's office to have a written agreement drawn up tended to show that they did not intend the previous oral negotiations to amount to a final agreement upon the terms of the exchange (Flax v. Sovrensky, 262 Mass. 60, 159 N. E. 497), this circumstance was not conclusive (Donovan v. Freeman, 263 Mass. 561, 161 N. E. 606). Spevak testified in substance that the negotiations were ‘finished’ as to ‘terms and details' and there ‘was nothing else to do except make up the agreement and take the check and give to him-later to look up the title.’ This testimony, with the other evidence in the case, warranted a finding that the terms of the exchange were finally agreed upon in the oral negotiations and that the purpose of the contemplated written instrument was to put those terms in a form which would be binding between the defendant and Spevak. The...
To continue reading
Request your trial
-
Gaynor v. Laverdure
...v. Markarian, 238 Mass. 334, 336--337, 130 N.E. 684, 685; Frankina v. Salpietro, 269 Mass. 292, 295, 168 N.E. 739; Lieberman v. Cohn, 288 Mass. 327, 332, 193 N.E. 6; Westlund v. Smith, 291 Mass. 96, 99, 196 N.E. The statement of the rule that the act of the owner in entering into a binding ......
-
E. A. Strout Realty Agency v. Gargan
...was to complete the sale by January 1, 1947. John T. Burns & Sons, Inc., v. Hands, 283 Mass. 420, 422, 186 N.E. 547; Lieberman v. Cohn, 288 Mass. 327, 329, 193 N.E. 6; Spritz v. Brockton Savings Bank, 305 Mass. 170, 171, 25 N.E.2d 155; Staula v. Carrol, 312 Mass. 693, 694, 45 N.E.2d 822, 14......
-
Lucier v. Young
...sign or to accept the check was evidence that he had not agreed to all the terms but does not require such a finding. Lieberman v. Cohn, 288 Mass. 327, 330, 193 N.E. 6. That the defendant was not the sole owner was immaterial. McKallagat v. La Cognata, 335 Mass. 376, 140 N.E.2d Doten v. Cha......
-
Snowden v. Cheltenham
...684; Frankina v. Salpietro, 269 Mass. 292, 295, 168 N.E. 739; Stern v. Old Colony Trust Co., 276 Mass. 456, 177 N.E. 617; Lieberman v. Cohn, 288 Mass. 327, 193 N.E. 6; Westlund v. Smith, 291 Mass. 96, 99, 196 N.E. 147; Seigel v. Cambridge-Wendell Realty Co., 323 Mass. 598, 83 N.E.2d 262; Pa......