Maksoodian v. Keller

Jenney, J. The defendant, who was in the retail grocery and provision business on Dudley Street in the Roxbury District of Boston, desiring to sell his store, authorized the plaintiff, who was a broker, to obtain a purchaser for $3,300 to $3,500, but stated that he “would consider a decent offer.” The plaintiff having procured George Mooradian as a customer at the price of $3,000, the defendant told Mooradian and the plaintiff that he would telephone the latter at his office on the afternoon of the same day and make known his decision. The plaintiff testified that on that afternoon in his office he talked over the telephone with a person whom he recognized from the voice as being the defendant, although this was the second conversation he had had with him, and that the defendant then said to him that he accepted the offer of $3,000 and that he “wanted plaintiff to take a deposit of $50 immediately from Mooradian and to get $450 more from Mooradian before' noon of the next day and then bring the $500” to him before that time. The defendant does not now press his objection to this evidence and concedes that it was admissible. See McCarthy v. Peach, 186 Mass. 67. The plaintiff further testified that Mooradian was in his office at the time and that he communicated [251] to him what he had heard over the telephone and immediately received a deposit of $50; that on the following day at about ten o’clock in the forenoon, he, with Mooradian and the latter’s brother, went to the defendant’s store, Mooradian being ready to make a deposit of $500; and that upon their arrival the defendant refused to sell for $3,000 "because some one had offered him $500 more, and that his wife would not let him sell.” No objection was made to the admission of any part of this testimony. Mooradian testified that he was ready, able, and willing to pay the purchase price; that while he was waiting in the plaintiff’s office he heard him talk with some one over the telephone and was told by him that the person with whom he was talking was the defendant. He was then asked, subject to the objection of the defendant, whether the plaintiff communicated to him the conversation he had had over the telephone and answered that he did. He further testified without objection that as a result of what the plaintiff so told him, he immediately made a deposit of $50 and on the next morning at the time stated in the testimony of the plaintiff went to the defendant’s store prepared to pay over the balance of the deposit and that the defendant refused to sell the property for $3,000. The defendant, while admitting the employment, denied the existence of any conversation over the telephone and said that he had rejected the offer. The defendant contends that the evidence does not warrant a finding for the plaintiff because the broker did not comply with the terms of his employment in that he failed to procure a further deposit of $450 before noon of the day following the conversation over the telephone; but the defendant’s refusal before that hour to sell the store to Mooradian for $3,000 was not based on this objection, and the plaintiff for that reason was not required to procure the balance of the deposit in order to justify recovery. Witherell v. Murphy, 147 Mass. 417. Brilliant v. Samelas, 221 Mass. 302. Whitkin v. Markarian, 238 Mass. 334. In any event the evidence justified a finding that Mooradian went with the plaintiff, within the limited time, prepared to pay the balance of the deposit directly to the defendant, whose rights were not affected because the customer was prepared to pay it to the defendant rather than to his agent, the plaintiff. The only other question argued relates to the admission of the [252] testimony by Mooradian as to what the plaintiff told him that the defendant over the telephone had said to him. While the answer was “Yes,” the witness was not asked to repeat the conversation. No objection was made to evidence offered by the same witness of what he did as a result of what he had been told. See Dixon v. Lamson, 242 Mass. 129. The admission of the question was right. The plaintiff acting as the agent of the defendant, in order to complete the negotiations, was authorized to tell the customer that the defendant had accepted his offer and the terms of its acceptance. Order dismissing report affirmed.