Goodnough v. Kinney

91 N.E. 295, 205 Mass. 203, 1910 Mass. LEXIS 991

Opinion

Braley, J.

It is settled, that where the broker secures a customer who is both willing and financially able to purchase property upon the terms authorized by the principal, who has been informed of the completion of the negotiations, a commission has been earned, even if a sale is not completed because the parties never enter into a binding agreement or the owner refuses or neglects to make a conveyance. Fitzpatrick v. Gilson, 176 Mass. 477, 478. Williard v. Wright, 203 Mass. 406. Cohen v. Ames, ante, 186.

The defendant’s first ground of defense is that, without disclosing to him the double employment, the plaintiff also acted as the agent of the proposed purchaser and therefore he cannot recover compensation from either. Quinn v. Burton, 195 Mass. 277. Sullivan v. Tufts, 203 Mass. 155, 158. But the only evidence upon which this contention can rest is the remark of counsel for the purchaser, who testified as a witness, that he informed the defendant that the plaintiff was the broker for his client. If by this remark anything more was meant than that the purchaser’s attention had been called to the property by the plains tiff, the testimony of the other witnesses amply warranted a finding, negativing any double employment.

It is next urged that the terms fixed by the sale were not in accordance with the defendant’s instructions. But if it be assumed that the sale was to be for cash, the judge upon the evideuce could find ifc had been negotiated on this basis, and that there was a valid tender of performance by the purchaser which the defendant refused.

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The defendant’s request for a ruling, that upon all the evidence the plaintiff could not recover was properly refused.

Exceptions overruled.

There was evidence that the defendant had asked the plaintiff to procure a purchaser for $1,400, but that “ there were no other terms made as to how the property should be sold ”; that the plaintiff procured a customer who was willing and offered to pay cash to the defendant, but that the defendant, after failing to keep appointments with an attorney at law employed by the customer, finally said that he had been advised not to sell.