Remington v. Pattison

• Citation: 162 N.E. 347,264 Mass. 249
• Parties: REMINGTON v. PATTISON.
• Decision Date: 30 May 1928
• Court: United States State Supreme Judicial Court of Massachusetts

264 Mass. 249

162 N.E. 347

REMINGTON

v.PATTISON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 30, 1928.

Exceptions from Superior Court, Suffolk County; Frederic B. Greenhalge, Judge.

Action by Thomas A. Remington against Dexter B. Pattison. On plaintiff's exceptions after verdict for defendant. Exceptions overruled.

William A. Murray, of Boston, for plaintiff.

A. Van Allen Thomason, of Boston, for defendant.

WAIT, J.

The declaration alleges that the plaintiff is a real estate broker with whom the defendant listed premises in Falmouth under an agreement that if the broker should procure a person ready, willing and able to buy the premises on terms satisfactory to the defendant, the latter would pay a broker's commission of 5 per cent. of the purchase price; that he did procure such a person, and that the defendant, by reason thereof, owes him $675. A count upon an account annexed was also set out. The defendant made a general denial, and answered further that ‘there was a special agreement that commission was to be paid to said plaintiff only at and upon the time of the completed sale going through, and that said sale has not gone through,’ so that the defendant owes nothing.

At the trial to a jury there was testimony: That the ‘defendant engaged [the plaintiff] as a broker to find a purchaser for’ the land in question; that in listing the property he had written: ‘The following properties are offered for sale subject to prior sale or withdrawal without notice. In case sales are made by brokers, however, they will be fully protected by me.’ That the plaintiff interested one Weisberg in the property who finally agreed with the defendant on a price of $13,500, paid $1,000 down on signing an agreement for purchase and sale, and was ready, willing and able to perform the conditions of the agreement provided the defendant cleared up certain alleged defects in the title. That the defendant retained the $1,000, but neglected to clear the title. That the agreement signed by buyer and seller contained the statement: ‘It is understood that a broker's commission of 5 per cent. on the said sale is to be paid to Remington & Reid [the plaintiff] by the said party of the first part [the defendant].’ That the defendant was in the brokerage business on Cape Cod and made a special oral agreement with the plaintiff on the Weisberg contract that he would pay the commission if, as and when papers were passed and Weisberg took title, and if for any reason the deal did not go through the plaintiff would not be entitled to any commission. That plaintiff assented and defendant said: ‘If I were dealing with a stranger I would have this in writing, but considering that you and I have discussed the difficulty with the titles, and both know the custom that no commission is paid until the sale actually goes through, I do not think we need a writing.’ That there was no legal imperfection in the title, and the defendant was willing to go through with the agreement, but Weisberg refused to buy as agreed and papers had never passed. That there had been no talk between plaintiff and defendant relative to the payment of the commission except that when the agreement was signed the defendant said: ‘The commission will be 5 per cent.’ An...