Maher v. Haycock

• Decision Date: 27 December 1938
• Parties: MAHER v. HAYCOCK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 594

18 N.E.2d 348

MAHER

v.HAYCOCK.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 27, 1938.

Action by William Maher against Warren E. Haycock, to recover commissions for sale of defendant's house. A special justice found for plaintiff in the amount of $150 and reported the case to the Appellate Division for a determination. From an order of the Appellate Division, that the finding be vacated and judgment entered for defendants, plaintiff appeals.

Reversed and rendered.Appeal from Appellate Division of District Court, Central District, Worcester County; Albert T. Wall, Special Justice.

J. A. Barnes, Jr., of Worcester, for appellant.

P. Henry Grady, of Worcester, for appellee.

QUA, Justice.

A real estate broker brings this action to recover a commission upon the sale of the defendant's house to one Craig. The finding of the trial judge for the plaintiff is now attacked solely upon the ground that the contract between the plaintiff and the defendant was void by reason of the provision in G.L.(Ter.Ed.) c. 136, § 5, prohibiting the doing of ‘any manner of labor, business or work, except works of necessity and charity,’ on the Lord's day.

Decisive facts which either were admitted or could be found are these: On Sunday, October 31, 1937, the plaintiff went to the defendant's house, identified himself to the defendant as a real estate broker, stated to the defendant that he had a customer, and obtained the defendant's promise to pay the plaintiff ‘a commission if the house were sold.’ On the same day the plaintiff brought Craig into the house and introduced him to the defendant, and they all examined the house. The plaintiff told Craig that the price was $5,500. Thereafter negotiations took place directly between the defendant and Craig. During the week of November 7 ‘the defendant and Craig completed the arrangements for the sale of the property’ for $5,000 with an agreement that Craig would reimburse the defendant, if the defendant should be held liable for a commission. On November 14 the property ‘was sold and conveyed,’ and the defendant gave a deed to Craig and his wife, dated that day. Both November 7 and November 14 were also Sundays.

The trial judge expressly found that ‘there was some preliminary discussion between the plaintiff and the defendant’ on October 31, and that there was ‘an implied contract on the part of the defendant to pay to the plaintiff the customary commission if the house was sold to Craig.’ The word ‘sold’ in this connection should not, in the absence of anything to indicate the contrary, be so strictly construed as to require that title should actually pass before the plaintiff should become entitled to a commission. It was enough if the plaintiff produced a purchaser ready, willing and able to buy on the defendant's terms. Walker v. Russell, 240 Mass. 386, 390, 134 N.E. 388.Buono v. Cody, 251 Mass. 286, 290, 146 N.E. 703. Compare Forbes v. Gordon & Gerber, Inc., Mass., 9 N.E.2d 416. The ultimate finding for the plaintiff imports such subsidiary findings as are permissible on the evidence, are not inconsistent with express findings, and are necessary to support the conclusion. Nicoli v. Berglund, Mass., 200 N.E. 373;Weathers v. Jarvis, Mass., 200 N.E. 886. The judge must therefore be deemed to have found in accordance with the evidence that all ‘arrangements for the sale of the property’ were completed ‘during the week of [Sunday] November 7,’ and hence that the plaintiff produced a purchaser ready, willing and able to buy on the defendant's terms before Sunday, November 14, and on a secular day. For these reasons nothing turns on the fact that the deed bore the date of Sunday, November 14.

The plaintiff is not barred because of what occurred on Sunday, October 31. No contract was made on that day. The plaintiff promised nothing, and he was entitled to nothing for his time and effort as such. The conversation between the plaintiff and the defendant amounted to no more than an offer on the defendant's part which would ripen into a unilateral contract when the plaintiff produced a customer ready, willing and able. Des Rivieres v. Sullivan, 247 Mass. 443, 446, 142 N.E. 111;Elliott v. Kazajian, 255 Mass. 459, 461, 462, 152 N.E. 351;Chamberlain v. New England Dressed Meat & Wool Co., 279 Mass. 462, 181 N.E. 719;John T. Burns & Sons Inc. v. Hands, 283 Mass. 420, 422, 186 N.E. 547. He produced such a customer on a secular day. Thus it appears that the contract sued upon was not made on Sunday and did not by its terms call for the doing of business or work on Sunday. Cases like Merriam v. Stearns, 10 Cush. 257,Day v. McAllister, 15 Gray 443,Myers v. Meinrath, 101 Mass. 366, 3 Am.Rep. 368,Stevens v. Wood, 127 Mass. 123,Stewart v. Thayer, 168 Mass. 519, 47 N.E. 420,60 Am.St.Rep. 407,Kryzminski v. Callahan, 213 Mass. 207, 100 N.E. 335, 43 L.R.A.,N.S., 140, and Hindenlang v. Mahon, 225 Mass. 445,...