Russo v. Slawsby

• Decision Date: 04 June 1929
• Citation: 146 A. 508
• Parties: RUSSO v. SLAWSBY et al.
• Court: New Hampshire Supreme Court

146 A. 508

RUSSO

v. SLAWSBY et al.

Supreme Court of New Hampshire. Hillsborough.

June 4, 1929.

Transferred from Superior Court, Hillsborough County; Young, Judge.

Assumpsit by Joseph S. Russo against Abraham B. Slawsby and another. Verdict for plaintiff. Case transferred from the trial term on defendants' exceptions. Verdict set aside, and new trial ordered.

Assumpsit, to recover a commission for selling the defendants' real estate. Trial by jury and verdict for the plaintiff.

The plaintiff's evidence tended to prove that in pursuance of an employment by the defendants he produced one Brown, who agreed to purchase the defendants' block for $40,000 cash, and $200,000 to be secured by mortgages, and that A. B. Slawsby agreed to negotiate a first mortgage and take a second one. Slawsby denied that any agreement was ever reached, and subject to exception, his testimony that no bank would make such a loan as was indicated by the plaintiff's evidence was excluded.

The defendants also excepted to the denial of their motion for a nonsuit, and to an instruction to the jury that the agent had performed his contract if he brought the minds of the buyer and the seller to an agreement for a sale and the price and terms upon which it was to be made.

James M. Graham, of Boston, Mass., and Thomas J. Leonard, of Nashua, for plaintiff.

Doyle & Doyle, of Nashua, and Winthrop Wadleigh and Robert W. Upton, both of Concord, for defendants.

PEASLEE, C. J. The case requires a determination of the conditions and terms which the law affixes to a general contract employing a broker to sell real property. By some authorities it is stated that he must produce a customer ready, able, and willing to perform the contract offered by the seller. This statement is to be found in many cases, in more than a score of different jurisdictions. But in none of them is there any consideration of what the several adjectives signify. In but two is there any reference to the topic, and these merely contain the assertion that "each of the words 'ready,' 'willing,' and 'able,' expresses an idea that the others, do not convey." Phillips' Ex'r v. Rudy, 146 Ky. 780, 784, 143 S. W. 397, 399; Gaston, etc., v. Warner (C. C. A.) 272 P. 63.

In other cases it is stated that if the customer is able and willing it is sufficient. Feist v. Jerolamon, 81 N. J. Law, 437, 75 A. 751; Crawford v. Cicotte, 186 Mich. 269, 152 N. W. 1065. In one jurisdiction the matter has been phrased as "prepared and willing." Miller v. Haddock, 109 Me. 98, 82 A. 701. This has there been treated as the equivalent for ready, able, and willing. Hartford v. McGillicuddy, 103 Me. 224, 68 A. 860, 16 L. R. A. (N. S.) 431, 12 Ann. Cas. 1083. In Connecticut the use of the term "ready" does not appear to be considered any addition to able and willing. Compare Abbott v. Lee, 86 Conn. 392, 85 A. 526, with Bronk v. Connecticut Trust & Safe Deposit Co., 89 Conn. 134, 93 A. 128. The same is true of New York. Wlttwer v. Hurwitz, 216 N. Y. 259, 110 N. E. 433.

It is nowhere suggested that these different statements are designed to vary the rule as to the broker's obligation. They all seek to describe a situation where he "has found a customer for that for which his principal has employed him to find a customer." Fitzpatrick v. Gilson, 176 Mass. 477, 57 N. E. 1000.

Those who insist that the requirement of readiness be stated rely upon the argument that a purchaser with frozen assets might be both able and willing to pay, and yet not be ready with present cash. Advocates of the briefer statement reply that such a party is not able to perform the agreement, although he might produce the money at a later date; and that therefore the use of the word "ready" is superfluous. The latter contention appears to be based upon the better reasons, and the rule has always been stated in accordance therewith in this jurisdiction. Parker v. Estabrook, 68 N. H. 349, 44 A. 484; Morrison v. Hall, 78 N. H. 48, 96 A. 298. "His undertaking was to produce a customer able and willing to buy." Wilson v. Atwood, 81 N. H. 61, 65, 122 A. 797, 799.

It is also argued on behalf of the defendants that the duty of the agent is such that he must procure the execution of an enforceable contract of sale. However it may be in case the maker of an oral promise to buy thereafter refuses to execute a written memorandum, the authorities generally hold that, if the failure to carry out the oral agreement arises from some cause other than default of the buyer, the agent has fully performed his contract and may recover his commission. "The fundamental doctrine is that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale and the price and terms upon which it is to be made." Parker v. Estabrook, supra, page 350 of 68 N. H. (44 A. 485).

Applying these rules, the motion for a nonsuit was properly denied. The negotiations were between the plaintiff, Brown, the prospective purchaser, and A. B. Slawsby, who is herein spoken of as the defendant.

The alleged contract was to pay $40,000 in cash and $200,000 in notes secured by mortgages, and that the defendant would undertake to negotiate a first mortgage and take a second one himself. The contention that there was no evidence of such an undertaking by the defendant cannot prevail. While the evidence was conflicting, there was enough in it to sustain the claim above set forth.

Inability to procure the proposed mortgage loan would not be a defense to the plaintiff's claim, if the existence of the defendant's agreement to procure the loan was proved. But the making of such a contract was denied by the defendant and was an important issue in the case. His knowledge that such a loan could not be procured was evidence upon this issue. When the question is whether a certain act was done, evidence of a motive for doing or not doing it should be received.

"One is perhaps apt to think of 'motive' as a matter involved in criminal cases only. But a recollection of the process involved— that of inferring the existence of some emotion, from which in turn the doing...