Donovan v. Freeman

161 N.E. 606, 263 Mass. 561, 1928 Mass. LEXIS 1183

• Court: Massachusetts Supreme Judicial Court
• Decided: May 26, 1928
• Status: Published

Opinion

Wait, J.

This is an action by a real estate broker to recover a commission. The evidence was conflicting and justified contradictory inferences. We find no error in the refusal to direct a verdict for the defendant. It is his contention that the buyer, introduced by the plaintiff, and the seller had not arrived at a completed bargain when the latter put an end to the negotiation by selling to a third party at a greater price. His difficulty is that the testimony permitted a different finding of fact. It is true, as was stated in Doten v. Chase, 237 Mass. 218, 220, cited by the defendant, that “The circumstance that the parties do intend a subsequent agreement to be made, is strong evidence to show that they did not intend the previous negotiations to amount to an agreement”; but it is not necessarily conclusive.

A finding that no completed agreement had been made seems more consistent with the printed evidence; but we cannot say that the judge who saw and heard the witnesses was wrong in ruling that an issue of fact to be determined from conflicting evidence was presented. There is nothing in this which contradicts the decisions in Flax v. Sovrensky, 262 Mass. 60, and Kelly v. Johnson, 258 Mass. 478.

Exceptions overruled.