Inch v. Cole

10 Mass. App. Div. 169

• Court: Massachusetts District Court, Appellate Division
• Decided: June 25, 1945
• Status: Published

Opinion

Adlow, J.

Action of contract against a purchaser of property to recover a broker’s commission. The plaintiff relies on a written contract made with the defendant which contract provides in part:

“In the event I, any member of my family or anyone else I may be acting for decide to rent or purchase any of these places, I will pay the deposit on same to William T. Inch. If the owner fails to pay the broker’s commission to William T. Inch I will pay the commission myself due to my failure of not paying the deposit to William T. Inch.

Address 2 — 4 Brook Farm Road... .Price 6000 or offer....

Signed ANDREW J. COLE”

The plaintiff never visited the premises with the defendant. Five days after the above agreement was signed the defendant was shown the premises by another broker through whose efforts the sale to the defendant was consummated at a price of $5500. It was conceded by the plaintiff that he was not the efficient cause in effecting the sale.

The only question raised by this report is whether on these facts the plaintiff was entitled to & finding. The plaintiff relies on his written agreement with the defendant. While this instrument appears inartistic and cumbersome, it is nevertheless clear and unambiguous. In their literal and usual sense the words purport to secure the plaintiff against any possible failure by the seller to pay him his commission if he earned it. The defendant’s responsibility is contingent. It arises only, “if the owner fails to pay the broker’s commission to William T. Inch.” No such default could occur because the owner never became obligated for any commission to the plaintiff. Report dismissed.