Gleason v. Nelson

38 N.E. 497, 162 Mass. 245, 1894 Mass. LEXIS 52

• Court: Massachusetts Supreme Judicial Court
• Decided: October 19, 1894
• Status: Published

Opinion

Allen, J.

The general rule of law applicable to a case like this is, that, where there has been no direct communication between the broker and the purchaser, it must be shown affirmatively that the latter was induced to enter into the negotiations which resulted in the purchase through the means employed by the broker for that purpose. If the broker employed other persons to aid him, whether under pay or not, or if he put up maps, signs, notices, or otherwise advertised the property, by means of which a person was induced to open negotiations with the owner which resulted in his buying the property, the sale may be said to have been effected through the broker’s instrumentality. But it must be made to appear that what the broker did was the immediate and efficient cause of such negotiations. If the broker merely talked about the property with different persons, and one of them of his own accord, and not acting in behalf of the broker, mentioned to another that the property was for sale, and such last mentioned person thereupon looked into the matter and finally became the purchaser, the agency of the broker in inducing the sale was not sufficiently direct to entitle him to a commission. Ward v. Fletcher, 124 Mass. 224. Loud v. Hall, 106 Mass. 404. Bornstein v. Lans, 104 Mass. 214. Tombs v. Alexander, 101 Mass. 255. Sussdorff v. Schmidt, 55 N. Y. 319. Wylie v. Marine National Bank, 61 N. Y. 415. Earp v. Cummins, 54 Penn. St. 394. Carter v. Webster, 79 Ill. 435.

The defendant relies on Lincoln v. McClatchie, 36 Conn. 136, as holding a rule rather more favorable to the broker. In that case the broker advertised,the property; A. saw the advertisement, conferred with the broker, and went and told his friend B., in whose behalf he felt an interest, and B. bought the property. It was held that the broker was the procuring cause of the sale, and so was entitled to his commission.

The defendant’s request for instructions was too broad. The purchasers may have obtained their knowledge that the plaintiff’s business was for sale from a person with whom the defendant had negotiated for its sale, and yet that person might not have been acting as agent for the defendant, or in his behalf. The instructions given to the jury were sufficient to protect the defendant’s rights, and fairly left it for the jury to determine whether the defendant was the cause, or instrumentality, or the efficient or effective means of bringing the purchasers and the seller together.

Exceptions overruled.