Richards v. Gilbert

• Decision Date: 08 January 1958
• Parties: Adolphe O. RICHARDS et al. v. William J. GILBERT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 921

146 N.E.2d 921

336 Mass. 617

Adolphe O. RICHARDS et al. v. William J. GILBERT et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Dec. 3, 1957.

Decided Jan. 8, 1958.

Daniel J. Fern, Hyannis (Kenneth E. Wilson, Hyannis, with him), for plaintiffs.

John J. Ryan, Boston, for defendants.

Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

These are the defendants' exceptions to the denial by the trial judge of the defendants' requests for rulings in connection with the judge's finding that the plaintiffs are entitled to recover from the defendants, who are real estate brokers, the sum of $4,500, which the defendants claimed as an earned commission, and interest.

The bill of exceptions shows in part as follows: The plaintiffs entered into a written contract dated May 14, 1955, to sell to one Cook, for $47,500, capital stock of a corporation the principal asset of which was real estate. The agreement was in form similar to forms used for the sale of real estate. Cook had been introduced by one of the defendants with whom the plaintiffs had 'listed the property for sale.' Cook paid a deposit of $4,750 and this was paid to the defendants under a paragraph of the agreement reading, 'It is understood and agreed that a brokers commission of $4,500 is to be paid to * * * [the defendants] by the seller. Pending final passing of papers said deposit shall be held in escrow by * * * [the defendants].'

Cook, on June 15, 1955, the performance date, was unable to produce the required balance due and had at all times been uncertain whether he could do so although the plaintiffs did not have doubts when the agreement was signed. On June 15 Cook and the plaintiffs sent the defendants a letter stating Cook's acknowledgment of his financial inability to complete, and the plaintiffs' offer to comply, and requesting the defendants to release the escrowed funds to the plaintiffs. The defendants paid the plaintiffs $250 and retained $4,500.

The requests for rulings were denied 'as not being in accord with the facts found.' There being no findings of fact, this was not a correct way of disposing of the requests. Mericantant v. Boston & Maine Railroad, 291 Mass. 261, 263, 197 N.E. 46. But the implications of the evidence stated in the bill of exceptions suggest what the judge had in mind. See Povey v. Colonial Beacon Oil Co., 294 Mass. 86, 93, 200 N.E. 891; Commonwealth v. Hull, 296 Mass. 327, 337, 5 N.E.2d 565; Orcutt v. Signouin, 302 Mass. 373, 375, 22 N.E.2d 18. The issue presented is, we take it, whether the trial judge could reasonably have concluded that the thing specified to be done in the implied offer of the owners to the brokers was to get the owners the purchase price, or was only to find a buyer who would sign a binding contract. See John T. Burns & Sons, Inc., v. Hands, 283 Mass. 420, 422, 186 N.E. 547. The requests included the general one that 'On all the evidence the plaintiffs are not entitled to recover.' Some of them stated law applicable to a listing with 'the understanding * * * that the plaintiff should effect a sale.' Menton v. Melvin, 330 Mass. 355, 357, 113 N.E.2d 447, 448. In such a case it is settled that the broker becomes entitled to his commission when the owner executes a binding contract, that by such execution the seller accepts the buyer as ready, able, and willing to purchase on the terms stated, and that the broker's rights are not affected by the actual inability of the buyer to perform or the return of the deposit, ibid., 330 Mass. at pages 356-357, 113 N.E.2d 447, and cases cited.

The bill states possibly relevant evidence, additional to that stated above, as follows: One of the plaintiffs testified that they 'listed the property for sale * * * and set the price they were desirous of obtaining, namely, $47,500.' One of the defendants testified that one of the plaintiffs 'listed the property with their office for sale and asked [the] defendants to find a buyer at a selling price of $47,500.' The other defendant 'testified that the listing was given to them and that it was their business to find a buyer.' The agreement of sale was drawn by an attorney who happened to be in the defendants' office when Cook walked in. The defendants introduced the attorney to Cook and he asked the attorney to take care of the details of the proposed transfer for him. The attorney felt 'when he prepared the agreement, it was his duty to see that all parties connected were...