Curran v. O'Donnell

Crosby, J. This is an action of contract brought to recover a commission for, or services in, procuring the defendant as a customer for the purchase of certain property of one Beaudry. There was evidence to warrant a finding of the following facts: that Beaudry employed the plaintiff to find a purchaser for the property; that after different terms of sale had been submitted by the plaintiff to the defendant, extending over a period of several months, an offer of sale was finally made at the direction of Beau-dry, by the terms of which the latter agreed to accept $700 for his interest in the real and personal estate so offered for sale; that this offer was accepted by the defendant; that the plaintiff was to be paid one third of the purchase price, or $233.33; that at the time the offer was accepted, Beaudry, the defendant and the plaintiff met, and the plaintiff agreed to release Beaudry from his claim for commission and services in consideration of the defendant’s promise to pay it; that the defendant agreed to pay the plaintiff, and the latter released Beaudry, who stated that the arrangement was satisfactory to him. . If the jury believed the foregoing evidence, the plaintiff was entitled to recover the amount due him from the defendant. The promise of the defendant was for a consideration. It was a promise to pay to the plaintiff the defendant’s own debt which grew out of the transaction, and not the debt of another, for the debt of Beaudry to the plaintiff had then been extinguished by the mutual agreement of the parties; accordingly it was not within the statute of frauds. By agreement of all parties, there was a novation by the terms of which Beaudry was discharged from [359] liability and the defendant by his promise was substituted as the plaintiff’s debtor. Caswell v. Fellows, 110 Mass. 52. Eden v. Chaffee, 160 Mass. 225. Trudeau v. Poutre, 165 Mass. 81, 86. Griffin v. Cunningham, 183 Mass. 505. The circumstance that the sale from Beaudry to the defendant was never consummated does not affect the rights of the plaintiff, whose contract under the terms of the employment, as the jury could have found, was merely to procure a customer for the purchase of the property, and not to effect a completed sale. Fitzpatrick v. Gilson, 176 Mass. 477. Willard, v. Wright, 203 Mass. 406, 409. In accordance with the terms of the report, the verdict ordered for the defendant is set aside, and judgment is to be entered for the plaintiff “for $233.33 and costs.” So ordered.