Menton v. Melvin

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before QUA; WILLIAMS; WILKINS
• Citation: Menton v. Melvin, 113 N.E.2d 447, 330 Mass. 355 (Mass. 1953)
• Decision Date: 02 July 1953
• Parties: MENTON v. MELVIN.

Page 447

113 N.E.2d 447

330 Mass. 355

MENTON v. MELVIN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 9, 1953.

Decided July 2, 1953.

Thomas C. Menton, Watertown, for plaintiff.

Frederick T. Conley, Boston, for defendant.

Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

This is an action of contract brought in the Second District Court of Eastern Middlesex to recover a real estate brokerage commission. The judge found for the plaintiff and reported the case to the Appellate Division which sustained his findings and rulings. The defendant appealed. There was evidence substantially as follows. In May, 1950, the defendant requested the plaintiff, who was a real estate broker, to sell her dwelling house in Watertown. The selling price was $10,500 cash and it was understood that the plaintiff should receive a 5% commission. The plaintiff produced as prospective buyers Norman O'Clair and wife who on July 21, 1950, executed a written agreement with the defendant for the purchase of the property for $10,500, the conveyance to be made on or before August 31. The O'Clairs made a deposit of $100. Nothing was said in the agreement about a mortgage but, after the agreement was signed, there was talk between the parties to the agreement and the plaintiff about arranging a mortgage to the Watertown Co-operative Bank for $7,500. Later it was found that such a mortgage was unobtainable and on August 17 O'Clair wrote to the defendant that he and his wife could get a mortgage for only $7,000 and that $3,000 in cash was all that they wanted to pay. It appeared that the defendant subsequently returned the deposit to the O'Clairs without first obtaining the consent of the plaintiff.

The judge found and ruled that the O'Clairs entered into a binding written agreement with the defendant to purchase the property on the defendant's terms as set forth in the agreement, but that in fact they were not financially able to purchase on those terms. He ruled that by executing the agreement the defendant accepted the O'Clairs as purchasers ready, able, and willing to buy; that the plaintiff had earned his commission; and that his right to it was not adversely affected by the return of the deposit. There was a finding for the plaintiff in the amount of $525.

We think there was no error in these findings and rulings. The agreement between the defendant and the O'Clairs was an unconditional and unqualified contract to sell and buy a described property on or before a certain date for $10,500. It was binding on both the seller and the buyers. There was no provision regarding a mortgage. By executing the agreement the defendant accepted the O'Clairs as purchasers ready, able, and willing to purchase on the terms therein stated. Johnson v. Holland, 211 Mass. 363, 364, 97 N.E. 755; Stone v. Melbourne, 326 Mass. 372, 373, 94 N.E.2d 783.

The judge found that the defendant 'listed' her property with the plaintiff for sale. If such listing be construed to mean that the plaintiff was employed to find a customer ready, able, and willing to purchase on the defendant's terms, he earned his...