Simon v. Meyer

Braley, J. The defendant, the owner of certain land in the city of Somerville, holding a permit from the municipal authorities to erect and maintain a public garage thereon, informed the plaintiff that he desired to sell the premises with the permit “going with the land” for $1 a foot, and requested him to procure a customer. If successful, the plaintiff was to receive a commission of $1,250. The plaintiff found and introduced one Finn to the defendant as a customer, and they made an agreement which, after giving the boundaries and location of the land “With a permit for the construction of the garage at the time of passing papers,” concluded in these words, “Mr. Simon of Brookline [the plaintiff] to receive One Thousand Two Hundred Fifty Dollars ... to be paid by Isidor Meyer.” There was evidence which would warrant the jury in finding that Finn was ready, able and willing to buy at the price named with a valid assignment of the permit, and that the defendant accepted from Finn partial payments of the purchase price. While there was no evidence of any ordinance of the city requiring a permit, the record states the parties negotiated on the basis that the permit held by the defendant was legally required and authorized, and that it was not assignable without the consent of the licensing authorities, which the defendant did not obtain. It also appeared in evidence that the defendant told Finn when the bargain was struck he had a permit, and “'guaranteed’ Finn 'for a permit’ in his (Finn’s) name and had it 'all fixed up in City Hall,’ ” and it was undisputed that no official permission for a transfer was given. The defendant’s failure, however, to tender or procure the issuance of a transfer to Finn did not deprive the plaintiff of his right to receive the stipulated compensation to which he was entitled by reason of the performance of his contract. Fitzpatrick v. Gilson, 176 Mass. 477, 479. Field v. Hamm, 254 Mass. 268, 270. The case was properly submitted to the jury, and the defendant’s requests in so far as argued were rightly denied. Altman v. Goodman, 255 Mass. 41. The defendant also excepted “to so much of said charge as instructed the jury that defendant was not able to transfer — 183 — the permit or strictly perform his agreement.” The short answer to this contention is, that as matter of fact on his own evidence the defendant neither made nor attempted to make a transfer, although he had bound himself to the performance of this material condition of the terms of sale. The permit or license was moreover the grant of a personal privilege, even if it was connected with the premises, an assignment of which, unless sanctioned by the proper authorities, would pass nothing to the assignee. Commonwealth v. Lavery, 188 Mass. 13, 14. Hanley v. Cook, 245 Mass. 563, 565. Exceptions overruled.