Witherell v. Murphy

Krowltoh, J. The defendant contends that the sale of the real estate by the plaintiff for “ $15,000 cash on delivery of the deed,’ ’ was not in accordance with the terms of the written contract which authorized him to make a sale “ for $15,000, about one half cash.” The contract was silent as to a sale for any larger sum, and also as to receiving more than one half of the price in cash, and as to the form in which that part of the price which was not required to be cash should be paid. It can hardly be contended that the sum named was a limitation of the plaintiff’s right to sell for a larger price if he had an opportunity to do so, and we are of opinion that the authorization to sell for about one half cash was as to the remainder merely a permissive stipulation for the benefit of the purchaser and of the plaintiff. In determining what kind of payment would answer the requirement of the contract in regard to that part of the consideration which was not called for in cash, the parties would naturally have inquired whether the method proposed would enable the defendant speedily to obtain the amount in money, or would be safe security for the ultimate payment of it in money with interest. They could have found no higher standard than cash by which to test the payment proposed. Certainly no higher standard, was established by the written contract. We must, therefore, hold that the plaintiff was authorized to sell the defendant’s property for a price to be wholly paid in cash on the delivery of the deed. The only other ground of defence grows out of the defendant’s refusal to perform the contract which she had authorized the plaintiff to make in her behalf. The declaration contains two counts, one upon an account annexed for commissions and services, and the other setting out the written contract, and what was done under it, and the defendant’s refusal to perform it. No question of pleading was raised at the trial, and none is open [420] upon these exceptions. And we have no occasion to inquire whether Elizabeth Gorry, the purchaser, acquired rights against the defendant. The plaintiff made a bargain of sale of the real estate which he was authorized to make, and which the purchaser was ready to carry out. The defendant was informed of it before it was put in writing, and declined to be bound by it. She named a higher price at which she said she would sell, and when the plaintiff obtained an acceptance of her offer, on condition that she should make the deed at once, she again declined to sell, unless she could get a much larger sum. He then put in writing and delivered to the purchaser his original contract of sale, and the purchaser accepted it, and was ready to perform her part of it. Under these circumstances, we think he was entitled to the sum named in the contract as the commission to be paid for making a sale. It was plainly-implied in the contract, that, after the plaintiff had made an agreement for a sale which needed only the defendant’s execution of a deed to consummate it, the defendant should not intentionally defeat the sale, and thus deprive the plaintiff of his commission. It was expressly provided that the defendant might withdraw the property from sale by giving the plaintiff thirty days’ notice thereof in writing, and paying the commission if the property was sold within thirty days after the withdrawal. This was equivalent to a stipulation that it should not be withdrawn otherwise. See Cook v. Fiske, 12 Gray, 491; Prickett v. Badger, 1 C. B. (N. S.) 296. It is immaterial in this case whether the plaintiff’s recovery properly rests on a right to receive his commissions for a sale within the meaning of the contract, or upon a claim for an equivalent sum as damages for the defendant’s refusal to perform her contract. Exceptions overruled,.