Roche v. Smith

• Decision Date: 17 October 1900
• Citation: 58 N.E. 152,176 Mass. 595
• Parties: ROCHE v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 595

58 N.E. 152

ROCHE v. SMITH.

Supreme Judicial Court of Massachusetts, Suffolk.

October 17, 1900

COUNSEL

Arthur E. Burr, for plaintiff.

Geo. R Blinn, for defendant.

OPINION

LORING, J.

This case was submitted to the superior court on an agreed statement of facts. Judgment was entered in that court for the defendant, and from that judgment an appeal was taken to this court.

It appears that the defendant, being the owner of certain land in Boston, 'employed the plaintiff to exchange said property for any other suitable property.' The plaintiff brought the matter to the attention of Michael F. Armstrong who offered to exchange a specified piece of land owned by him for the land of the defendant. Armstrong's land was accepted by the defendant as 'suitable,' and through the efforts of the plaintiff a written agreement was made between the defendant and Armstrong, by which the defendant was to convey her land to him, and he was to convey his land to her. It was stipulated that each lot of land was 'to be conveyed within twenty days from this date by a good and sufficient warranty deed, * * * conveying a good and clear title to the same free from all incumbrances, except [in the case of Armstrong's land] taxes for 1897 and a mortgage for thirteen thousand dollars.' On examining Armstrong's title, the defendant discovered that, acting under St. 1891, c. 323, St. 1892, c. 418, and St. 1895, c. 449, the board of street commissioners of the city of Boston had filed plans in the office of the city engineer of the city of Boston, by which certain streets or ways were located over the land to be conveyed to her by Armstrong, in consequence of which he 'was unable to convey his said property free from the operation and effect of any of the said doings of the board of street commissioners, and by reason thereof the defendant refused to carry out said agreements.' Thereupon the plaintiff brought this suit for his commission.

It is expressly stated that 'the plaintiff had no knowledge of the * * * facts relative to the acts of the board of street commissioners of the city of Boston' which are stated above, and that he 'acted in good faith in all said negotiations.' It was held in Knapp v. Wallace, 41 N.Y. 477, where the broker was employed to find a person to convey land to be paid for in money, and in Kalley v Baker, 132 N.Y. 1, 29 N.E. 1091, where the broker was employed to find a person to convey land to be paid for by a conveyance of other land,--that is to say, to effect an exchange,--that where the principal makes a valid agreement with the customer produced by the broker, the broker has earned his commission, even if it turns out that the customer cannot make a good title, and the land is not conveyed; provided the broker acted in good faith in the matter. In the opinion of a majority of the court, those cases were rightly decided. The question is the same in the two cases; the only difference is that in one case payment is to be made in money, in the other by a conveyance of other land. Where the broker is employed to get a customer to buy and pay for his principal's land, and it turns out that the customer is not able to pay for the land, it is settled that his inability does not deprive the broker of his commission; provided the principal made a valid and binding agreement for the sale of the land with the customer produced by the broker. Ward v. Cobb, 148 Mass. 518, 28 N.E. 174; Burnham v. Upton, 174 Mass. 408, 409, 54 N.E. 873. The ground on which this is settled is that, by entering into a valid contract with the customer produced by the broker, the principal accepts the customer as able, ready, and willing. In such a case the decision would have to be the other way, were it not that by entering into the contract with him the principal accepts the customer produced by the broker. What the broker is employed to do is to produce a customer who will buy and pay for his principal's land. Fitzpatrick v. Gilson (Mass.) 57 N.E. 1000. If it turns out that the customer produced by the broker is not able to pay, and does not pay, for the land, the broker has not performed his duty, and has not earned his commission; and it is only because the principal accepts the customer, by entering into a valid contract with him, that it is held, in cases like Ward v. Cobb, that the broker has earned his commission. Coleman's Ex'r v. Meade, 13 Bush. 358; Donohue v. Flanagan (City Ct. N. Y.) 9 N.Y. Supp. 273; Francis v. Baker, 45 Minn. 83, 47 N.W. 452; Wray v. Carpenter, 16 Colo. 271, 27 P. 248; Lockwood v. Halsey, 41 Kan. 166, 21 P. 98; Springer v. Orr, 82 Ill.App. 558. The law is settled in other jurisdictions in accordance with Ward v. Cobb (see Francis v. Baker, 45 Minn. 83, 47 N.W. 452; Wray v. Carpenter, 10 Colo. 271, 27 P. 248; Love v. Miller, 53 Ind. 294); and generally that a broker makes out a case for a commission earned by proving a contract made. See Cook v. Fiske, 12 Gray, 491; Rice v. Mayo, 107 Mass. 550; Keys v. Johnson, 68 Pa. St. 42; Veazie v. Parker, 72 Me. 443; Conkling v. Krakauer, 70 Tex. 735, 739, 11 S.W. 117. The same rule obtains when the principal wants to buy in...