Ballou v. United Button Co.

De Courcy, J. The plaintiff, a real estate broker, brought this action to recover a commission, alleging that he was employed by the defendant to procure a purchaser of certain real estate for the sum of $100,000, and that he did procure a purchaser upon the terms mentioned. The trial judge directed a verdict for the defendant, and reported the case to this court. In order to determine what the contract of employment was, and whether the plaintiff performed his part, it is necessary to recite the essential facts as the jury could find them on the evidence. On October 5, 1916, the District Court of the United States appointed receivers for the defendant company and restrained it from selling or disposing of any of its property. The real estate involved in this case was on A Street in South Boston, and was encumbered with three mortgages and several leases. On that day the plaintiff met William A. Porter, who was president of the defendant and also one of the receivers, in the District Court. Porter said he wanted “to sell the property to get the proceeds in meeting the obligations of the corporation,” and asked the plaintiff “to try again to find a buyer.” Nothing was then said about the price, terms, or commission; but the plaintiff knew that the property was subject to mortgages and leases. On October 7, the plaintiff wrote to “William A. Porter, Receiver,” that he had a possible buyer in sight, and asked to be advised of “your present asking price, subject to usual commission if we effect sale.” Porter replied on October 13, “The matter of selling any Real Estate is not up to the Receivers at the present time but if that question should arise you will be advised.” On October 19 the plaintiff wrote that he had a new prospective buyer, who desired a plan of the real estate, and a list of the tenants, rentals, and dates when leases expire. On October 27 he reported to Porter as co-receiver, that this buyer offered $100,000 cash for the property “free of leases, and free of Mortgage encumbrance, the U. B. Co. to have the privilege of selling separately and removing the tank, engine, boilers, and all machinery except sprinkler system, and you pay taxes of course, for current year, and our commission; ” the buyer to take possession January 1, or at latest April 1, for his own use. Porter replied on November 1, that the receivers could not entertain the offer, because of the mortgages which covered this and other property; and recommended [461] the plaintiff to take the matter up with Mr. A. R. Latson of New York, the attorney for the United Button Company. The plaintiff thereupon wrote to Latson: and a personal interview was arranged, and held in Boston on November 6. The plaintiff’s customer (Brown) was present; and Brown refused to increase his offer and insisted that the building must be free from leases and that possession be given him by April 1. Latson said that any sale would have to be conditional on the approval of the defendant’s directors, the consent of the District Court, and the reorganization agreement, as well as contingent upon the leases. The directors of the defendant company met on November 9. The plaintiff relies mainly on the vote then passed as an acceptance of said offer of purchase. But in addition to the fact that this vote was not communicated to the plaintiff, and that the restraining order of the District Court was still in force, there is the further answer to this claim that the vote did not constitute an acceptance of the terms offered by the plaintiff. It was expressly conditional upon the execution of a contract of sale which should be approved by Messrs. Latson and Tamblyn as counsel of the defendant company, and which would bind the reorganization board to consummate the sale if and when the property should be acquired from the receivers. Mr. Latson in his letter to the plaintiff of the same date explained that the directors could not authorize nor the defendant enter into a contract, and that the receivers were powerless in the matter. He added “The board looked with favor upon this proposition, but it remains to be seen whether counsel can devise an appropriate contract covering the situation,” and expressed a willingness to come to Boston for that purpose. Efforts to reach a satisfactory agreement were continued, but without success. The main obstacle was the Terkelson and Wen-berg lease, which would not expire until February 1,1919. Brown, the prospective purchaser, would not accept the property subject to this lease. All the parties attempted in good faith to induce these tenants to surrender their lease and accept other premises, and sought otherwise to negotiate a satisfactory arrangement. Failing in this, no sale was effected. It seems apparent that the contract of employment was that the plaintiff should bring about a sale of the property; and this [462] he never did. But assuming that it could be found from the evidence that the contract was that the plaintiff should procure a purchaser, able, ready and willing to buy the property, as declared on, it plainly was with the understanding that the terms should ■ be satisfactory to the defendant. While the plaintiff’s customer was ready to purchase on certain specified terms, the defendant never agreed to sell on those terms. In short, the plaintiff never produced a customer who was willing to take the property on terms that the-defendant was able and willing to agree to. The verdict for the defendant was directed rightly, and in accordance with the report judgment is to be entered on the verdict. So ordered.