Walker v. Russell

• Decision Date: 02 March 1922
• Citation: 134 N.E. 388,240 Mass. 386
• Parties: WALKER et al. v. RUSSELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 386

134 N.E. 388

WALKER et al.

v.RUSSELL.

Supreme Judicial Court of Massachusetts, Worcester.

March 2, 1922.

Exceptions from Superior Court, Worcester County; Henry T. Lummus, Judge.

Action on contract by Alfred L. Walker and another against Charles M. Russell, on an account annexed for commission for procuring a customer for defendant's wood lot. Verdict for plaintiffs, and defendant brings exceptions. Exceptions overruled.

Defendant excepted to the admission of testimony of the plaintiffs as to what was a reasonable commission for selling wood lots in the vicinity. He also moved for a directed verdict, and requested a number of rulings which the court refused. After a verdict for plaintiff he moved for a new trial, and requested a ruling of law that under the instructions the verdict could not stand, and excepted to the denial of the motion and the refusal to rule as requested.

Ralph W. Robbins, of Fitchburg, and George M. Barrows, of Ayer, for plaintiffs.

Baker & Baker and Samuel M. Salny, all of Fitchburg, for defendant.

CROSBY, J.

This is an action to recover a commission on a sale of real estate. The contract having been oral, its terms are to be determined from the evidence. The plaintiffs' declaration is upon an account annexed, and charges ‘commission for procuring a customer for defendant's wood lot, 5 per cent. on $8,375-$418.75.’

There was evidence that some time in 1917 the plaintiff Walker saw the defendant with reference to selling his (the defendant's) wood lot; that in May of the same year the defendant stated that his price was $7,500; that he asked Walker ‘what * * * [he] had for selling lots,’ and that Walker replied, ‘5 per cent.’ On direct examination, Walker testified that during the conversation the defendant said, ‘If I would find a customer for the lot he was willing to pay for the sale of it.’ The defendant testified that he stated to Walker his price was $7,500 net and that he, Walker, would have to get his commission out of the purchaser.

There was evidence that Walker showed the lot to several persons, including one Howe, who agreed to buy it, and on January 20, 1919, delivered to him a certified check for $100 in part payment; that Walker forwarded the check to the defendant who cashed it and obtained the proceeds; that between January 20, 1919, and June 3, 1920, the defendant saw the plaintiffs twice and talked with them respecting the sale to Howe; that he asked when the latter was going to complete the bargain and on being told that Howe was not then ready, he expressed willingness to wait a while provided Howe would pay interest on the purchase price and taxes on the lot.

There was also evidence of two conversations by telephone between the plaintiffs and defendant in the fall of 1919; that on June 3, 1920, Walker and Howe saw the defendant and told him that they were ready to pay $500 at that time on the purchase price and the balance on or before June 10; that the defendant finally agreed to that arrangement provided Howe would pay interest and a year's taxes, and with the further understanding that if he did not pay the balance as agreed the amounts paid should be forfeited to the defendant; that Howe consented to these terms and so stated to the defendant; that he was willing and ready at that time to pay $500 in cash but that the latter afterwards refused to accept it, declined to carry out the agreement, and sold the lot the next day to one Whitney.

[1][3] If the jury believed the evidence offered by the plaintiffs, a finding was warranted that the sale was not consummated because of the defendant's fault and that the plaintiffs were entitled to a commission for procuring a customer who was able, ready and willing to purchase the property. The contention of the defendant that on the testimony of the plaintiff Walker a commission was not to be paid unless there was a completed sale cannot be sustained. The testimony of Walker that ‘If I [Walker] would find a customer for the lot he [Russell] was willing to pay for the sale of it’ does not necessarily mean that an actual sale should be made as a condition precedent to the right of the plaintiffs to receive a commission. The words ‘to sell’ or ‘to make a sale,’ as used by the parties in a transaction of this kind, means that the defendant should be furnished by the plaintiff with a purchaser who is able, ready and willing to buy on the defendant's terms; at least the jury could so find. The word ‘sale’ in this connection could be found to mean the furnishing to the defendant an opportunity to sell his property. If, as the plaintiff Walker testified, the defendant inquired of him what he received for selling lots, it was evidence that the defendant understood he would have to pay a commission if the plaintiff procured a purchaser and not that there was to be a completed sale to entitle him to be paid. The words ‘sale,’ or ‘to make a sale,’ as used by brokers in contracts with their principals, in cases like the one at bar, ordinarily mean to negotiate a sale and to procure a purchaser; strictly speaking, a broker who is so employed cannot make a sale or sell real estate because he is not vested with the legal title. A contract for a commission on a ‘sale’ entitles the broker to the specified compensation whenever through his influence a prospective purchaser is produced, although the sale is never consummated because of the fault or unwillingness of the principal. Rice v. Mayo, 107 Mass. 550. In the following and other cases where actions were brought by real estate brokers to recover commissions for the ‘sale’ of property or ‘to make a sale,’ those words have been assumed to mean to procure a customer who was able, willing, and ready to purchase on the terms of the owner. Witherell v. Murphy, 147 Mass. 417, 419, 18 N. E. 215;Holden v. Starks, 159 Mass. 503, 504, 34 N. E. 1069,38 Am. St. Rep. 451;Taylor v. Schofield, 191 Mass. 1, 77 N. E. 652;Brilliant v. Samelas, 221 Mass. 302, 108 N. E. 1047;Harrington Co. v. Waban Rose Conservatories, 222 Mass. 372, 111 N. E. 37.

[5] If the conversation between Walker and the defendant in May, 1917, as testified to by Walker, is to be taken as a correct recital of what they said, a completed oral contract was entered into by which the plaintiffs were to find a customer for the lot, the price being fixed at $7,500; and the defendant agreed to pay a commission of 5 per cent. to the plaintiffs if they found such customer who was able, willing and ready to purchase on those terms. As nothing was said as to the terms of payment, the contract properly construed meant that it should be paid in cash. The evidence offered by the plaintiffs tended to show that that agreement was afterwards modified by the parties and that $100 was paid by the prospective purchaser on January 20, 1919, and that a further agreement was made on June 3, 1920, by which Howe was to pay $500 on that day and the balance seven days later.

While the presiding judge stated in his charge that there was no evidence of any contract except the talk between the parties early in 1917, he afterwards correctly stated to the jury that--

‘According to the plaintiffs' contention and testimony the defendant had agreed to the terms that involved the payment of five hundred dollars down and a future payment of the balance in a certain time. Those are the terms that the plaintiff contends were agreed to by the defendant. If you do not find those terms were agreed to by the...