Cohen v. Ames

Sheldon, J. 1. It could not be ruled as matter of law that the plaintiff must fail in this action because he was to be paid by Wyman for procuring a lease from the defendants, and so had an individual interest adverse to that of the defendants, under the doctrine of Sullivan v. Tufts, 203 Mass. 155. The jury might not believe the testimony of Wyman. Or they could find that there was merely a promise or an offer, of a promise voluntarily made by Wyman, but never accepted by the plaintiff, which never had become an agreement between them. The most that can be said is that it presented a question for the jury. 2. We are of opinion that upon all the evidence the question of Cole’s authority to bind the defendants by making a contract in their behalf with the plaintiff was for the jury, although the evidence is meagre. 3. A real estate broker may entitle himself to recover a [188] commission by proof that it was be who, having been employed for that purpose, really brought about a sale or lease concluded by the owner of the property, that his efforts were the efficient cause of the sale or lease. Cases in which this was done, among others which might be cited, are Desmond v. Stebbins, 140 Mass. 339; Gleason v. Nelson, 162 Mass. 245; Dowling v. Morrill, 165 Mass. 491; Hall v. Grace, 179 Mass. 400; French v. McKay, 181 Mass. 485; Willard v. Wright, 203 Mass. 406. To recover upon this ground, it must be shown that an actual sale or lease was made. Munroe v. Taylor, 191 Mass. 483. The plaintiff does not seek to recover upon this basis. A broker who is employed merely to procure a purchaser or tenant becomes entitled to a commission if he procures a customer who is able, ready and willing to take the property at the price and upon the terms fixed by the owner, and whom the owner accepts. Taylor v. Schofield, 191 Mass. 1. Monk v. Parker, 180 Mass. 246. Fitzpatrick v. Gilson, 176 Mass. 477. It does not affect the broker’s right in such a case that the owner afterwards refuses to carry out the transaction. Carnes v. Howard, 180 Mass. 569. It is upon this ground that the plaintiff bases his claim. On the evidence, we are of opinion that the jury might have found that the plaintiff, after the failure to accomplish anything in November, 1905, was employed to see Wyman and bring him to the defendants, and that if the defendants accepted Wyman as a tenant, they were to pay the plaintiff the ordinary broker’s commission. It could have been found that the condition was not, as it was contended to be by the defendants, that they should execute a lease to Wyman, but merely that they should accept him as a tenant. This would entitle the plaintiff to recover if it should be shown that they had accepted Wyman as their tenant. There was evidence that they came to an agreement with him to accept him, and began to make out a lease to him, and that Wyman was ready to , accept a lease and able to comply with its terms. But it appeared that then, upon objectian being made by other tenants in the building to any part thereof being leased to Wyman, the defendants finally refused to let him into the building or to give any lease to him. The question is whether upon this evidence, taking the most favorable [189] view for the plaintiff, the jury would have had a right to find that the defendants had once accepted Wyman as their tenant, and that all the terms of the proposed tenancy had been agreed upon so that nothing was left to be done except to write out and execute the proposed lease. We are of opinion that the jury could so have found. In Smith v. Kimball, 193 Mass. 582, relied on by the defendants, the only agreement made by the defendant was to pay the plaintiff a commission if he procured a sale of the property; the plaintiff never did this; and the defendant never accepted a customer who was brought to him by the plaintiff. Exceptions sustained.