Carrig v. Earle

Braley, J. This is a suit to recover one half of a broker’s, commission for the sale of land and buildings known as “Burton Halls” held and managed by the defendants as trustees of the “Colonial Trust.” The judge who heard the case without the. appointment of a commissioner found that the defendants employed the plaintiff to procure a purchaser for one half the regular broker’s commission, the other half being payable to the defendant Giles, one of the trustees. And, the plaintiff having procured one [532] Cox, who was ready, willing and able to buy upon terms accepted by the defendants, a commission on the selling price had been earned, and entered a decree for one half of the amount with interest from the date of the writ. It is contended that this general conclusion is necessarily inconsistent with the specific facts previously stated in his findings, and that the decree should be reversed. Briggs v. Sanford, 219 Mass. 572, 573. The first two agreements prepared by the defendant Giles for the sale to Cox on terms negotiated by the plaintiff, which also provided for a “regular broker’s commission on the said sale is to be paid to James A. Carrig and George A. Giles” by the defendants, were signed by Cox and returned to Giles who then told the plaintiff that the trustees would not sign because they desired that payments on the second mortgage which they were to take should be so apportioned as to be payable monthly, the last payment to become due in three years. Negotiations however were not terminated.. Two new agreements signed by the defendants similar in form to the first agreements except the insertion of the provision for the payment of the second mortgage by instalments were prepared by Giles and given to the plaintiff on December 12, 1919, who delivered them to Cox, and “$500” on account of the purchase price was paid, accepted and deposited by Giles in his personal account. But, Cox being in doubt whether he would not be in default if the monthly payments were delayed, the defendants signed and delivered on January 7, 1920, a letter in which they agreed, that a lapse of thirty days in any of the payments should not be considered a breach of covenant, and agreeing also that he might pay in advance for a period of three months. The letter and the agreement constituted the contract. Nickerson v. Weld, 204 Mass. 346, 355. Hanson & Parker Ltd. v. Wittenberg, 205 Mass. 319, 324. George Lawley & Son Cory. v. Buff, 230 Mass. 21, 23. While the initial payment of “$2,000” required by the contract became due December 12,1919, and a second payment of “$3,000” on January 1, 1920, the judge has found that by their letter and conduct the defendants waived strict compliance with these conditions, and waiver being a question of fact the finding must stand. Borden v. Fine, 212 Mass. 425. Follins v. Dill, 229 Mass. 321, 324. [533] It is plain that the findings that on January 7, 1920, Cox paid “$1,500” which was accepted as a payment on account of the purchase price, and that this amount with the “$500” previously paid satisfied the initial payment, and that by making these payments after receiving the letter Cox indicated his assent to the terms of the agreement as modified, and that the provisions relating to the dates of the first two payments had been waived by the defendants by their acceptance of the payments, are not repugnant to, but support the judge’s conclusion. The defendants on January 9, 1920, decided to repudiate the agreement, and, without notifying the plaintiff or Cox of their intention, surreptitiously obtained possession of it, and thereupon through counsel notified the plaintiff that they would not make any agreement “as proposed in the drafts” which had been accepted by the parties. The question, whether as between Cox and themselves the defendants had succeeded in doing away with the contract, need not be decided. The plaintiff’s rights were not dependent on the subsequent acts of either the vendors or the purchaser in the performance of the agreement. Edward T. Harrington Co. v. Waban Rose Conservatories, 222 Mass. 372. The judge having found that at the date of the first agreement and thereafter until the defendants’ repudiation Cox was financially able to perform the agreement, his bankruptcy the following June is immaterial. Nor does the fact that the defendants have repaid Cox affect the plaintiff’s right of recovery. Walker v. Russell, 240 Mass. 386. We perceive no reason why the plaintiff on the record should be deprived of the commission which the defendants agreed to pay. Nickerson v. Bridges, 216 Mass. 416, 420, 421. The decree is affirmed with costs of the appeal. Ordered accordingly.