Noyes v. Caldwell

• Decision Date: 26 February 1914
• Citation: 216 Mass. 525,104 N.E. 495
• Parties: NOYES v. CALDWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 525

104 N.E. 495

NOYES v. CALDWELL.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1914

COUNSEL

Jas.

F. Cavanagh and Philip A. Hendrick, both of Boston, for plaintiff.

Henry W. B.

Cotton Edwin D. Sibley, and Jos. R. Cotton, all of Boston, for defendant.

OPINION

LORING J.

This is an action to recover $243.75, a broker's commission on the sale of the defendant's real estate. It was admitted that the plaintiff, Bates and two other brokers had been employed by the defendant to find a purchaser for the property in question. The price originally fixed by the defendant was $10,000 net. By this we understand that the purchaser was to pay $10,000 and the broker's commission. At some time (not stated in the bill of exceptions) before the matters which gave rise to this action, the plaintiff acting through an employé (one Cox by name) had brought to the defendant an offer of $9,000, and the defendant testified that he understood that this offer came from one Curtis. This was refused by the defendant. Both Cox and the defendant testified that at this interview the defendant told Cox that the plaintiff could sell the property for $9,500 net, and all over that was to go to the plaintiff. Cox testified that after this he saw Curtis 'at various times,' and that on Thursday, August 22d, or Friday, August 23d, 'he made an oral agreement with Curtis whereby Curtis agreed to buy the property for $9,750'; that 'no papers were signed at that time, but Curtis told him to return the following Monday with his agreements.' The defendant testified 'that shortly after he had given the price of $9,500 net to Cox, he was approached by said Bates, and that through this Bates an agreement dated August 26, 1912, was signed between Caldwell and this same Curtis whereby Caldwell agreed to sell and Curtis to buy the property for the sum of $9,000, commission on said sale to be paid by Curtis.' Cox testified that on Monday, August 26th, at about 4:30 p. m., he presented to Curtis an agreement of purchase for $9,750, which Curtis refused to sign.

It is plain that the offer testified to by Cox and the defendant was an offer like that in question in Munroe v. Taylor, 191 Mass. 483, 78 N.E. 106, where nothing is due to the broker unless a sale is made. Cox testified 'that he was authorized by the defendant to sell the property at $9,500 net; that all over that amount Noyes was to get.' The defendant's testimony was: 'That said Cox was given authority to sell at $9,500 net to the defendant, all over which amount Cox or Noyes was to get.' Such an offer is an option to sell to the broker or his nominee rather than an authority to the broker to find a customer. But whichever view of it is taken, nothing is due unless a sale is made and carried through.

The plaintiff testified 'that he understood the price $9,500 net to mean that the defendant should receive at least that amount from the sale of the property no matter how little or how much over the $9,500 the property actually sold for, but that the plaintiff did not understand that it meant everything in excess of $9,500 (nor was it his custom to take such excess) but that if the property brought $9,750 that the defendant was entitled to all in excess of $9,500 less a commission of 2 1/2 per cent.' But the...