Spence v. Lawrence
| Decision Date | 11 April 1958 |
| Citation | 149 N.E.2d 379,337 Mass. 355 |
| Parties | Herbert W. SPENCE v. Walter E. LAWRENCE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Alan F. Sawyer, Saugus, for plaintiff.
Albion L. Hogan, Lynn, for defendant.
Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.
This is an appeal by the plaintiff, a real estate broker, in an action of contract to recover a commission, from a decision of the Appellate Division which vacated a finding of a District Court for the plaintiff and ordered a finding for the defendant.
There was evidence that the defendant on March 21, 1956, entered into a written agreement with the plaintiff, the first paragraph of which is the only part now material and reads as follows: This agreement did not specify 'the price and * * * the terms mentioned' or 'any reduced price or other terms to which I [the defendant] shall consent.' There was a dispute about the price at which the property was listed. The defendant claimed that it was listed for sale at $22,500 net after a commission of five per cent to be paid to the plaintiff. The plaintiff testified that the net price to be obtained was $22,000.
After signing of the exclusive agency created by the written agreement of March 21, 1956, the plaintiff advertised the property for $24,500 and submitted various offers ranging from $18,500 to $20,000, some of which had been made by Dr. Halpert but all of which were rejected.
The property which is the subject of this controversy was the defendant's home, where he lived with his wife, the title to which was held by both as tenants by the entirety. The trial judge found that she was active in the negotiations with the plaintiff in behalf of her husband and that the husband held her out as his agent to the plaintiff in all matters pertaining to the sale of their home.
The plaintiff on the evening of April 20, 1956, which was the last day of the period of exclusive employment, called at the defendant's home. The defendant was not at home but his wife was. He told her that Dr. Halpert had made another offer and was willing to pay $23,000 and tendered the doctor's check for $500 as a deposit. She refused to accept the offer because after the payment of the commission it would not net the owners $22,500. The plaintiff replied that he would reduce his commission to $1,000 so that would result in obtaining $22,000 for their property. She still refused to accept the offer.
The defendant had written to the plaintiff on April 19, 1956, terminating the exclusive agency at the end of the following day, April 20, 1956, as he had the right to do. The defendant had spoken to one Coppola on April 19, 1956, with whom he executed a written agreement on April 21, 1956, and ultimately sold the property to Coppola's company for a price which netted the defendant $22,500. The plaintiff makes no contention that he had anything to do with the sale of the property to this purchaser.
At the trial in the District Court the judge found that the plaintiff was right in assuming that he was to find a purchaser who was able, ready, and willing to purchase at a price which would net the owners $22,000 and not $22,500 as they contended, that the plaintiff reduced his claim for a commission from five per cent of $23,000 to $1,000 so as to give the owners $22,000 clear, and that the plaintiff was entitled to his commission of $1,000. He therefore found for the plaintiff in this amount. The Appellate Division reversed on the ground that the plaintiff had failed to show that his customer, Dr. Halpert, was ready, able, and willing to pay $23,000 for the property.
Where the broker's right to a commission is not by the terms of his undertaking made dependent upon the completion of a sale (see Walker v. Tirrell, 101 Mass. 257), the fact that, because of the neglect or refusal of the principal, the sale is not completed is immaterial and it is sufficient if the broker has procured a customer ready, able, and willing to purchase the premises at the price and on the terms stipulated by the seller. This principle of law has been recently reiterated in McKallagat v. La Cognata, 335 Mass. 376, 378, 140 N.E.2d 185, and cases cited. See also Richards v. Gilbert, Mass., 146 N.E.2d 921. The undertaking in the instant case required the broker 'to endeavor to procure a purchaser' and appointed the broker as his sole and exclusive agent 'for the sale of the property' at a price...
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