Whitkin v. Markarian

• Decision Date: 07 April 1921
• Citation: 238 Mass. 334,130 N.E. 684
• Parties: WHITKIN v. MARKARIAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 334

130 N.E. 684

WHITKIN

v.MARKARIAN.

Supreme Judicial Court of Massachusetts, Suffolk.

April 7, 1921.

Appeal from Municipal Court of Boston, Appellate Division.

Action by Isaac Whitkin against Oscar Markarian. Finding for plaintiff. Case reported to the appellate division of the municipal court of the city of Boston, which dismissed the report, and defendant appeals. Order dismissing report affirmed.

At the close of the trial the defendant made the following requests for ruling.

(1) Defendant did not employ plaintiff as broker to sell his house.

(2) Defendant did not authorize plaintiff to sell his house as broker.

(3) The defendant did not give plaintiff or make any terms for the sale of his property.

(4) The defendant did not give plaintiff all the terms and conditions for the sale of his property.

(5) If plaintiff was authorized to sell defendant's property his authority was revoked before any purchaser was procured and introduced to defendant, which purchaser was to be ready and willing to buy.

(6) If defendant authorized plaintiff to sell his property he had the absolute right to revoke said authority before a bargain was made by the broker and before commission was earned.

(7) A broker is entitled to commission only when he has procured a customer who is ready and willing to buy on stated terms.

(8) If no term was stated except the fixing of the price, then is it presumed that the entire price shall be paid in cash?

(9) Upon all the evidence the defendant is entitled to judgment.

The court refused Nos. 1, 2, 3, 4, 5, and 9 of said requests and gave requests numbered 6, 7, and 8, and found for plaintiff.

Walter B. Grant and Jacob Tertzag, both of Boston, for appellant.

Barnett Welansky, of Roxbury, for appellee.

JENNEY, J.

The terms of the report are not perfectly clear, but the case was considered and decided in the municipal court of the city of Boston and argued in this court on the basis that the plaintiff's employment was to procure a customer ready, able, and willing to purchase the defendant's property upon terms approved by him. We consider it on that basis and hence cases like Munroe v. Taylor, 191 Mass. 483, 78 N. E. 106, and Noyes v. Caldwell, 216 Mass. 525, 104 N. E. 495, do not control.

The judge properly could find that the defendant authorized the broker to sell his house for $8,000 subject to an existing mortgage, and gave him other terms of sale which he did not remember at the trial. Although the record is meager, it appears that the plaintiff procured a customer, one Cox, who was willing to buy the house for $8,000, without reference to any other terms of sale; that the plaintiff reported this offer to the defendant, who said he was too busy to attend to the transaction and told the plaintiff to ‘fix it up’; that Cox gave the plaintiff as a deposit on account of the sale his check for $100; that the check was at once handed by the plaintiff to the defendant, who ‘laid * * * [it] on plaintiff's desk and said he did not think his wife would sign,’ and further said ‘he wanted eight thousand ($8,000) dollars net free of commission.’ Cox, who apparently was present, offered to pay the sum stated and one-half of the commission in addition, which offer the defendant refused. The defendant, knowing who the plaintiff's customer was, raised no objection to his readiness, ability or willingness to perform his offer, or to the terms of sale, except that he attempted to get a large amount than that for which he had authorized the sale of the...