Dube v. O'Connor

1981 Mass. App. Div. 253, 1981 Mass. App. Div. LEXIS 102
CourtMassachusetts District Court, Appellate Division
DecidedDecember 22, 1981
StatusPublished

This text of 1981 Mass. App. Div. 253 (Dube v. O'Connor) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dube v. O'Connor, 1981 Mass. App. Div. 253, 1981 Mass. App. Div. LEXIS 102 (Mass. Ct. App. 1981).

Opinion

Cowdrey, P.J.

This is an action in contract to recover a real estate broker’s commission. Summary judgment was entered for the plaintiff in the amount of $900.00.

The report indicates that on J anuary 29,1971 the parties executed a written agreement for the sale of certain property owned by the defendant. The contract provided:

To Lionel C. Dube, Realty Broker, you have the exclusive right to sell my property at 10 Thurston Street, Somerville, Mass, for 60 days at the regular commission rate óf everything over $27,000... .The professional service and expense of advertising and showing the property shall be entirely borne by you; and in consideration thereof you shall be entitled to the commission if the property is sold within the said period, by whomever sold, and after the termination of this by you. You are authorized to place your regular ‘For Sale’ signs of the property and to show it without and within at reasonable times or by appointment.

The agreement, signed by both the plaintiff as broker and the defendant as owner, expired on March 29, 1971.

On March 12,1971, the defendant sold the real estate in question to a Joseph A. and Marie P. Peters at a purchase price of $27,900.00. Said purchasers were not procured throught any efforts undertaken by the plaintiff-broker. The plaintiff had [254]*254at no time relevant hereto produced a buyer ready, willing and able to purchase the defendant’s property.

The defendant did not pay a real estate broker’s commission to the plaintiff.

The plaintiff and defendant submitted cross-motions for summary judgment pursuant to Dist.Mun. Cts. R. Civ. P., rule 56. The trial court denied the defendant’s motion and found for the plaintiff in the sum of $900.00.

1. The defendant’s principal contention on this appeal is that the exclusive right of sale accorded to the plaintiff under the parties’ written agreement of January 29, 1971 was properly, and without liability to the plaintiff, revoked by the defendant’s sale of his own property to the third party purchasers. It is well established that the use of the word ‘ ‘exclusive’ ’ is not alone sufficient either to render a real estate broker’s agency irrevocable or to deprive an owner of the right to sell his property personally and without compensation to the broker. DesRivieres v. Sullivan, 247 Mass. 443, 446 (1924); Holmes v. Ames, 18 Mass. App. Dec. 204, 206 (1959). The listing of property with a realty broker is customarily deemed a revocable promise or offer by the owner to pay a commission rather than a binding agreement for the same. John T. Burns & Sons, Inc. v. Hands, 283 Mass. 420, 422 (1933); Horowitz v. S. Slater & Sons, Inc., 265 Mass. 143, 154-155 (1928); Elliot v. Kazajian, 255 Mass. 461-462 (1926). An unaccepted offer may be withdrawn or rejected at any time before acceptance. See, generally, Onanian v. Leggat, 2 Mass. App. Ct. 523, 630 (1974). Thus it has been held that an “exclusive agency” or ‘ ‘exclusive right to sell” which is merely an unilateral promise to pay a commission upon the broker’s securing of a purchaser may be revoked by the owner’s sale of the property, or otherwise, at any time prior to the broker’s performance. Pasquale v. Shore 343 Mass. 239, 246 (1961); Bartlett v. Keith, 325 Mass. 265, 267 (1950); DesRivieres v. Sullivan, supra at 446.

2. Where the contract between a broker and the owner of real estate for sale is bilateral in nature and founded upon consideration, however, the “exclusive right to sell” created under such contract is irrevocable and cannot be terminated without liability to the broker even upon a sale by the owner himself. Lattuca v. Cusolito, 343 Mass. 747, 751 (1962); Coan v. Holbrook, 327 Mass. 221, 223 (1951);John T. Burns & Sons, Inc. v. Brasco, 327 Mass. 261, 263 (1951; Pin and Marion v. Cloutier, 23 Mass. App. Dec. 162, 167 (1962). See also Dwyer v. Walder, Mass. App. Div. Adv. Sh. (1979 150,152, note 2. The contract at issue sub judice clearly falls into this categoiy of bilateral, irrevocable agreements. By its express written terms; the defendant’s promise to pay a commission was made “in consideration of” the plaintiff’s “professional service and expense of advertising and showing the property.” The plaintiffs promise to provide such brokerage services, given in exchange for the defendant’s promise to pay a commission, constituted sufficient consideration to render this contract bilateral and to take this case out of the Bartlett v. DesRivieres rules. Pin and Marion v. Cloutier, supra at 167; John T. Burns & Sons, Inc. v. Brasco, supra at 258.

3. We affirm, therefore, the trial court’s ruling that the defendant’s promise to pay the plaintiff a commission was irrevocable during the term of the parties’ bilateral contract.

Such ruling is not, however, the equivalent of a finding that the plaintiff was entitled to a judgment in his favor as a matter of law. The characterization of a contract as bilateral or of a promise as irrevocable does not automatically entail a right to recover on such contract or promise. The plaintiff s suit is to recover for the alleged breach of contract attending the defendant’s failure to pay the plaintiff a commission. It is familiar law that in an action for breach of contract the plaintiff must allege and prove his performance of all contractual obligations. See, e.g., [255]*255Waldo Bros. Co. v. Platt Contracting Co., 305 Mass. 349, 359 (1940; Truck Leasing Service, Inc. v. Ryan 41 Mass. App. Dec. 52, 54 (1969). The same burden of proof obviously devolves upon a broker to establish his right to a commission under a bilateral agreement for the broker’s exclusive sale of real estate. Moran v. Bates, 29 Mass. App. Dec. 118, 122(1964). See also Glendon v. Pyne, 275 Mass. 528, 529 (1931); Goward v. Waters, 98 Mass. 596, 598 (1868). To make such performance, or proof thereof, prerequisite to recovery is not to render the parties’ contract a unilateral undertaking. The plaintiff need not show that he procured the ultimate purchaser, but must manifest that he performed some service in accordance with his original promise to provide “professional service and [to bear the] expense of advertising and showing the property’ ’ offered for sale by the defendant herein. The plaintiff’s agreement to advertise and show the property may have in fact contained an implicit promise ‘ ‘to use all reasonable efforts to sell the premises” (John T. Burns & Sons, Inc. v. Brasco, supra at 263); and what would constitute such reasonable efforts or sufficient performance customarily presents a question of fact for the trial court. Preview, Inc. v. Everets, 326 Ma. 333, 335-336 (1950). To absolve the plaintiff of the burden of establishing any performance would render illusory the consideration upon which the parties’ bilateral agreement was premised. Ste, Moran v. Bates, supra at 122-123.

There is nothing in the parties’ contract or in the record before us which would appear to have excused the plaintiff s performance, and thus to have negated the existence of, or rendered irrelevant, this material issue of fact.

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Related

Coan v. Holbrook
97 N.E.2d 649 (Massachusetts Supreme Judicial Court, 1951)
Lattuca v. Cusolito
180 N.E.2d 658 (Massachusetts Supreme Judicial Court, 1962)
Bartlett v. Keith
90 N.E.2d 308 (Massachusetts Supreme Judicial Court, 1950)
Pasquale v. Shore
178 N.E.2d 276 (Massachusetts Supreme Judicial Court, 1961)
Pereira v. New England LNG Co., Inc.
301 N.E.2d 441 (Massachusetts Supreme Judicial Court, 1973)
Previews, Inc. v. Everets
94 N.E.2d 267 (Massachusetts Supreme Judicial Court, 1950)
John T. Burns & Sons, Inc. v. Brasco
98 N.E.2d 262 (Massachusetts Supreme Judicial Court, 1951)
Goward v. Waters
98 Mass. 596 (Massachusetts Supreme Judicial Court, 1868)
Des Rivieres v. Sullivan
142 N.E. 111 (Massachusetts Supreme Judicial Court, 1924)
Elliott v. Kazajian
152 N.E. 351 (Massachusetts Supreme Judicial Court, 1926)
Horowitz v. S. Slater & Sons, Inc.
265 Mass. 143 (Massachusetts Supreme Judicial Court, 1928)
Glendon v. Pyne
176 N.E. 602 (Massachusetts Supreme Judicial Court, 1931)
John T. Burns & Sons Inc. v. Hands
186 N.E. 547 (Massachusetts Supreme Judicial Court, 1933)
Waldo Bros. v. Platt Contracting Co.
25 N.E.2d 770 (Massachusetts Supreme Judicial Court, 1940)
Comstock v. Dewey
83 N.E.2d 257 (Massachusetts Supreme Judicial Court, 1949)
Truck Terminal Realty Co. v. Boston Redevelopment Authority
339 N.E.2d 891 (Massachusetts Supreme Judicial Court, 1976)
General Electric Co. v. Brady Electrical Co.
317 N.E.2d 91 (Massachusetts Appeals Court, 1974)
Moran v. Bates
29 Mass. App. Dec. 118 (Mass. Dist. Ct., App. Div., 1964)
Truck Leasing Service, Inc. v. Ryan
41 Mass. App. Dec. 52 (Mass. Dist. Ct., App. Div., 1969)
Holmes v. Ames
18 Mass. App. Dec. 204 (Mass. Dist. Ct., App. Div., 1959)

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Bluebook (online)
1981 Mass. App. Div. 253, 1981 Mass. App. Div. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dube-v-oconnor-massdistctapp-1981.