MacDonald v. Mihalopoulos
| Decision Date | 04 April 1958 |
| Citation | 337 Mass. 260,149 N.E.2d 138 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | William J. MacDONALD v. Lambros A. MIHALOPOULOS and another. |
Jacob Friedberg, Boston, for plaintiff.
Joseph Coviello, Boston, for defendants.
Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER and WHITTEMORE, JJ.
In this action by a real estate broker for a commission, there was a finding for the defendants. A report to the Appellate Division was dismissed, and the plaintiff appealed.
We summarize the pertinent evidence as follows: In May, 1954, one John F. Collins was interested in purchasing a tavern which was located on property of the defendants at 142-146 South Street, Jamaica Plain. Collins instructed the plaintiff, who knew the defendants, to negotiate with them for the purchase of the property, but the plaintiff was told not to concern himself with the purchase of the tavern. On May 19, 1954, the plaintiff went to one of the defendants, Lambros A. Mihalopoulos (hereinafter sometimes called the defendant), and told him that he had a buyer who would pay $24,000 for the South Street property. On the following day the plaintiff brought Collins to the defendants and the parties agreed to a sale of the property for $24,000 in cash. Collins made a cash deposit of $1,000 and both defendants executed duplicate receipts therefor. The receipts described the location of the property and stated the amount of the sale price. Collins signed the receipts as a witness. On both receipts it was stated that the plaintiff was broker for the defendants and it was agreed at the trial that the plaintiff was employed by the defendants to sell the property in question. It was also agreed that Collins was 'presented by the plaintiff to the defendants.' The plaintiff testified that the defendant said at this meeting, 'If you can put it through for $24,000 I'll give you $1,000.' The defendants' version was that the plaintiff was to get a commission of $1,000 'when papers are passed.' 1
At the time the receipts were executed (which was on a Thursday) it was agreed that a purchase and sale agreement was to be executed by Collins and the defendants at the office of the defendants' attorney on the following Monday, and that the plaintiff in the meantime was to have the agreements drawn by his attorney, Mr. Friedberg.
At the time and place agreed upon for the execution of the agreements neither Collins nor the plaintiff appeared. On the following day a lawyer from Mr. Friedberg's office delivered unsigned agreements to the defendants' lawyer. At no time thereafter did Collins ever get in touch with the defendants' lawyer or make any attempt to execute a written agreement. About ten days after Collins had given the deposit to the defendants he purchased the tavern for the sum of $24,000. He then informed the plaintiff that he did not have the necessary cash to purchase the South Street property and that he was no longer interested in acquiring it.
The judge found that the defendants agreed to pay the plaintiff a commission only if he produced a purchaser ready, able, and willing to buy the property and that such a purchaser was never produced. The questions for decision arise out of the judge's denial of two rulings requested by the plaintiff. These in substance asked the judge to rule that in procuring Collins as a prospective purchaser of the property at a price set by the defendants, coupled with the facts of the deposit by Collins and the receipt therefor signed by the defendants, the plaintiff had done all that he was required to do to earn his commission.
These rulings were rightly denied. It is not disputed that the plaintiff procured Collins, who orally agreed with the defendants to purchase the property in question at the price fixed by them, and that Collins also made a deposit of $1,000. But beyond that point Collins would not go. Having acquired the tavern, he informed the plaintiff that he was no longer interested in purchasing the property.
On this evidence a finding was amply warranted, if not required, that the plaintiff had not produced a customer who was ready, able, and willing to purchase the property. A broker does not earn his commission merely by producing a customer...
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