Cohen v. Shaine

Braley, J. The material facts found by the trial court are that the defendant employed the plaintiff as a broker to assist him in the purchase of a house of two tenements which he intended to occupy as a home. The plaintiff directed the defendant’s attention to a house of this description which was occupied by one Fannie Sagalyn, supposed by the parties to be the owner. The defendant, being satisfied with the property, entered into a contract in writing to purchase it at an agreed price of $11,000, under conditions of payment which are not material, and on the same date gave to the plaintiff an instrument, which, omitting the date and signature, reads: “ I, William [123] Shame, promise to pay to Sam Cohen the sum of $200 for his services when I receive good and sufficient deed to the property located at 18 Summer Terrace, according to agreement made this day with Fannie Sagalyn.” By this agreement the defendant bound himself to pay this amount upon acquiring title by a “ good and sufficient deed ” from “ Fannie Sagalyn.” But on the same day the plaintiff informed the defendant that she did not own the property, and that the title was in the name of her son Ernest Sagalyn, who would not sell unless the price was •increased to $11,500. The son, however, could not sell without his mother’s written consent, as she had the right to occupy any part “ with the buildings thereon as long as she sees fit.” The defendant thereupon told the plaintiff that he was willing to pay $200 or $250 more and said, “ I want to get this house; if you can get me a new contract signed by the owner, I’ll take it. . . . If the youngest son (meaning Ernest Sagalyn) will sign the deed I will take it,” subject to the limitation as to the amount of the increased price which he was willing to pay. As a result of the plaintiff’s negotiations Ernest Sagalyn, the owner, having in his possession an unsigned deed in proper form of the premises, called upon the defendant and said that if he wanted “ to carry it through on the terms of the contract,” namely, the contract made with his mother, he would remain in the city for that purpose until the next day. The defendant replied that he had rented an apartment the preceding day and no longer desired to buy. It is found that Ernest Sagalyn was ready and willing to convey the property on the terms of his mother’s contract and that the defendant, before he was visited by him, had never notified the plaintiff that he had rented an apartment and revoked his agency. The finding in substance that the defendant authorized the plaintiff to purchase the property from Ernest Sagalyn, who was willing to sell, at the original price, to which sale Mrs. Sagalyn had consented in writing, was well warranted. The same principle applies in the case at bar as if the plaintiff had been employed by the defendant to procure a purchaser able and willing to buy property owned by the defend [124] ant which he wished to sell on similar terms and conditions. And, the transaction having been fully completed on his part and no' tender of the deed by Sagalyn being necessary under the circumstances, the plaintiff had earned the commission which the defendant agreed to pay. Stuart v. Newman, 241 Mass. 33, 36, and cases there collected. Trevas & Schack, Inc. v. Napel Mills Co. 241 Mass. 452, 456. It is plain under the findings which were warranted by the evidence that the requests in so far as argued, could not be given, and, no error of law being shown, the order of the Appellate Division dismissing the report should be affirmed. G. L. c. 231, § 110, as amended by St. 1922, c. 532, § 8. So ordered.