Klayman v. Silberstein

Crosby, J. This is an action of contract to recover a real estate broker’s commission. The case was submitted to the jury on the first and second counts of the declaration. The first alleges that the plaintiff was employed, by the defendant, as a broker to sell certain real estate, upon the terms therein stated; that he procured a customer upon those terms; and that the defendant owes him a commission for his services. The second count alleges that the plaintiff was employed, by the defendant, as an exclusive broker with the sole right to sell the real estate described in the first count upon the terms therein stated; that the plaintiff procured a customer upon those terms; that he (the plaintiff) had the exclusive right to sell; and that the defendant made a sale of the property, and the plaintiff is entitled to a commission on such sale. The jury returned a general verdict for the plaintiff. The plaintiff’s evidence tended to show that in May, 1921, the defendant said to the plaintiff, “‘Klayman, why don’t you sell my property . . . ? I am anxious to sell it as I need the money now.’ The defendant told the plaintiff in detail the amount of the first mortgage, the assessment, the income, and further said, ‘The asking price is $48,000 but when it comes to real business I will shade some. If you . . . will get a customer I . . . will sell for $47,000. The purchaser [was] to put in $4,000 or $5,000 in cash, depending upon whether the price were $47,000 or $48,000, and for the balance the defendant would take a second mortgage. ’ ” The plaintiff’s evidence further tended to show that he said to the defendant, “‘I would like to take your property for sale provided you give me some time for the exclusive right for selling it. I want around a month or more, if possible.’ To which the defendant replied: ‘I will give you two months and I won’t even try to sell it myself. ’ ” The plaintiff introduced further evidence to show that he procured purchasers, showed them the property, introduced them to the defendant, and that they were able, willing and ready to buy on the defendant’s terms. The defendant offered evidence tending to show that he did not employ the plaintiff; that he never saw him until — 278 — after he had negotiated with the persons whom the plaintiff contends he had procured as customers. The defendant requested the judge to instruct the jury: (1) "There is no evidence on the part of the plaintiff in this action tending to prove any contract of employment except a contract giving the plaintiff the exclusive right for a period of two months to sell the property of the defendant’s wife;” and (2) "If the jury are not satisfied, by a fair preponderance of the evidence, that the plaintiff was given the exclusive right to sell the property of the defendant’s wife for a period of two months, the verdict must be for the defendant.” The requests were refused, and the defendant excepted. Although it is stated in the record that the evidence was conflicting whether the property belonged to the defendant or to his wife, the judge told the jury that the title was in the name of the defendant’s wife. The ownership, however, was immaterial so far as the issues involved at the trial were concerned. The right of the plaintiff to receive a commission was the same whether the defendant or his wife owned the property, and the jury were so instructed. The defendant did not rest on the plaintiff’s testimony but introduced evidence tending to show that no contract whatever was made with the plaintiff. It was open to the jury to believe the testimony of the defendant to the effect that no exclusive agency was given to the plaintiff, and to believe that part of the plaintiff’s evidence to the effect that a contract of employment was made, and to disbelieve that part of the plaintiff’s testimony tending to show that the employment was exclusive. It was the duty of the jury to find the facts by weighing all the testimony. They were not required to- accept as true or reject the whole or any part of the testimony of either party, but could credit such portions of it as they deemed- worthy of credence. Ingraham v. Boston & Northern Street Railway, 207 Mass. 451, 456. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 323. Hill v. West End Street Railway, 158 Mass. 458. Hankinson v. Lynn Gas & Electric Co. 175 Mass. 271. Barney v. Magenis, 241 Mass. 268, 272. It follows that the requests were rightly refused. — 279 — If, as could have been found, the plaintiff procured a customer, known and acceptable to the defendant, for a price, for which he had authorized the sale of the property, the plaintiff was entitled to a commission. Willard v. Wright, 203 Mass. 406. Leland v. Barber, 228 Mass. 144. Whitkin v. Markarian, 238 Mass. 334. Exceptions overruled.