Stern v. Old Colony Trust Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: WAIT
• Citation: Stern v. Old Colony Trust Co. , 276 Mass. 456, 177 N.E. 617 (Mass. 1931)
• Decision Date: 11 September 1931
• Parties: STERN v. OLD COLONY TRUST CO.

276 Mass. 456

177 N.E. 617

STERN

v.OLD COLONY TRUST CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 11, 1931.

Exceptions from Probate Court, Suffolk County; Nelson P. Brown, Judge.

Action by Ike Stern against the Old Colony Trust Company, executor. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

Daniel J. Gallagher, of Boston, for plaintiff.

H. F. R. Dolan, of Boston, for defendant.

WAIT, J.

We find no error in the refusal of the trial judge to direct a verdict for the defendant. There was evidence to justify finding that the plaintiff was asked to find a purchaser for certain real estate at a price of $375,000, $50,000 in cash and the balance in a mortgage payable in ten years at six per cent interest; that he found a purchaser and received a check for $5,000 as a deposit; that, at the seller's request, he retained the deposit, but eventually returned it, after the seller changed his mind and refused to go on with the transaction. There was no testimony that the seller ever questioned the readiness, willingness and ability of the proposed purchaser to make the necessary payment and to give the mortgage. There was evidence that he had met the purchaser and learned from him that he had purchased adjoining property and proposed building upon it. Although he did not take the deposit check, he instructed the plaintiff to hold it until he returned from an intended trip when ‘we will do business.’ There was evidence that the refusal to go on with the sale was due to the seller's desire to get a higher price; that he stated to a witness that ‘I made a mistake when I gave Ike [the plaintiff] a price for I didn't think he would ever get a customer at that price.’ Furthermore, when the plaintiff demanded the agreed payment on the ground that he had earned it by producing the customer, the seller urged him to try to get a bigger price...