Goldman v. Eisenberg

Wait, J. This is an action at law. The plaintiffs are bound by their agreement to accept the terms of the written and sealed contract of purchase and sale executed by their principals and the purchasers found by the plaintiffs. That agreement provides that the plaintiffs’ commission of $1,000 should be paid “if and when papers are passed.” The evidence established that, when suit was brought, papers had not been passed. The plaintiffs contend that, notwithstanding this fact, they can maintain their action. The trial judge and the Appellate Division of the Municipal Court of the City of Boston have sustained their contention. No evidence appears of any fraudulent conduct on the part of the defendants either in delaying conveyance or in securing the plaintiffs’ assent to the stipulation in regard to payment. The language of the contract is clear and unambiguous. The right to payment is conditional. The decision of the case is controlled by Clark v. Hovey, 217 Mass. 485. “If and when papers are passed” does not, like “when title is passed” — the language to which the decision in Rosenthal v. Schwartz, 214 Mass. 371, applies — merely “designate the period beyond which the plaintiff need not wait for his compensation.” The words used in the agreement here in question make payment contingent on the passing of papers. They mean that nothing is due, if papers do not pass. Whether at any time, in a different forum, or upon other evidence, "a recovery is possible, we do not determine; but upon the case now before us we are constrained to decide that the plaintiffs are not entitled to keep the judgment in their favor. The action was premature. The defendants were entitled to the rulings they requested. The order of the Appellate Division is set aside and judgment for the defendants is to be entered. So ordered.