Witherell v. Murphy

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: KNOWLTON, J.
• Citation: Witherell v. Murphy, 147 Mass. 417, 18 N.E. 215 (Mass. 1888)
• Decision Date: 18 October 1888
• Parties: WITHERELL v. MURPHY.

147 Mass. 417

18 N.E. 215

WITHERELL v. MURPHY.

Supreme Judicial Court of Massachusetts, Berkshire.

October 18, 1888

Action of contract by Arthur J. Witherell against Rosanna Murphy to recover commissions for an alleged sale of certain real estate made by him for the defendant under the following written agreement:

"NORTH ADAMS, MASS., January 27, 1886.

OPINION

KNOWLTON, J.

The defendant contends that the sale of the real estate by the plaintiff for "$15,000 cash on delivery of the deed" was not in accordance with the terms of the written contract, which authorized him to make a sale "for $15,000, about one-half cash." The contract was silent as to a sale for any larger sum, and also as to receiving more than one-half of the price in cash, and as to the form in which that part of the price which was not required to be cash should be paid. It can hardly be contended that the sum named was a limitation of the plaintiff's right to sell for a larger price if he had an opportunity to do so, and we are of opinion that the authorization to sell for about one-half cash was, as to the remainder, merely a permissive stipulation for the benefit of the purchaser and of the plaintiff. In determining what kind of payment would answer the requirement of the contract in regard to that part of the consideration which was not called for in cash, the parties would naturally have inquired whether the method proposed would enable the defendant speedily to obtain the amount in money, or would be safe security for the ultimate payment of it in money, with interest. They could have found no higher standard than cash by which to test the payment proposed. Certainly no higher standard was established by the written contract. We must therefore hold that the plaintiff was authorized to sell the defendant's property for a price to be wholly paid in cash on the delivery of the deed.

The only other ground of defense grows out of the defendant's refusal to perform the contract which she had authorized the plaintiff to make in her behalf. The declaration contains two counts,--one upon an account annexed for commissions and services, and the other setting out the written contract, and what was done under it, and the defendant's refusal to perform it. No question of pleading was raised at the trial and none is open upon these exceptions. And we have no occasion to inquire whether Elizabeth Gorry, the purchaser, acquired rights...