Trent v. Goldberg

Crosby, J. This is an action to recover a commission for having procured a purchaser for certain real estate owned by the defendant. The plaintiff testified that on April 5, 1927, he met the defendant on the premises and the latter told him that the property was a three-family house upon which there was a first mortgage of $5,000 held by a savings bank, and a second mortgage for $3,600, both to run two years; that the price for the property was $10,500, and he would pay a commission of three and one half per cent. The plaintiff further testified that on April 10, 1927, he went to the premises with one Jarrett and a Mrs. Blunt, who had previously agreed to look at the house, and from there they went to the defendant’s house; that the plaintiff went over the figures; that Mrs. [222] Blunt said she would like to purchase the property at a lower price; that the defendant stated he wanted $10,000 net to himself, that he would sell for $10,300, and Mrs. Blunt agreed to pay that amount; that thereafter agreements were prepared by the plaintiff which specified that the sale price was $10,300, that the property was subject to a first mortgage of $5,000 held by a savings bank and maturing in about two years, and a second mortgage for $3,600 payable $150 quarterly and maturing in about two years, and that a deposit of $200 was to be paid; that no reference to a commission appeared in the agreements; that the attorney for the defendant then informed the parties that the first mortgage would be payable the following June and the second mortgage in September, 1928, and the defendant then agreed he would obtain an extension or a new first mortgage for at least two years. There was other evidence that at the interview between the plaintiff, the defendant, Mrs. Blunt, and Jarrett, the defendant stated that he would sell the property for $10,300, that he was to receive $10,000 net and the commission would be $300, and that at the expiration of the three years he would take a second mortgage on the property. It was also in evidence that when the prospective purchaser learned that the first mortgage was not held by a savings bank but by an individual, and was payable in about two months instead of in three years as represented by the defendant, she declined to buy the property. At the close of the evidence the defendant presented ten requests for rulings. Requests numbered 4, 5, and 6 were given; the others were refused. The judge found for the plaintiff in the sum of $300. The evidence warranted a finding that a definite agreement was made between the plaintiff and the defendant by which the plaintiff was to receive from the defendant a commission of $300 if a customer was produced who was ready, able and willing to purchase the property for $10,300; that the plaintiff produced such a customer, but the sale was not effected for the reason that such customer refused to buy because of the defendant’s misrepresentations respecting the mortgages and the time when they would mature. If the [223] judge believed the evidence offered by the plaintiff, he was warranted in finding that the reason the sale was not consummated was the misrepresentations of the defendant, and that the plaintiff was entitled to a commission of $300 for procuring a customer who was able, ready and willing to purchase the property upon the terms and conditions upon which the defendant represented to the plaintiff he Was authorized to procure a purchaser. As a definite agreement could be found to have been made between the plaintiff and Mrs. Blunt, the plaintiff’s right to a commission was not affected by an attempted change in the terms of sale by the defendant, or by the fact that the sale failed of consummation due to the misrepresentations of the defendant respecting the mortgages on the property. Monk v. Parker, 180 Mass. 246. Hutchinson v. Plant, 218 Mass. 148. Walker v. Russell, 240 Mass. 386. The cases, relied on by the defendant, which hold that a commission is not earned unless there is a completed sale, are different in their facts from the case at bar and are not applicable. See Munroe v. Taylor, 191 Mass. 483; Noyes v. Caldwell, 216 Mass. 525. The facts in the present case are plainly distinguishable from those in Field v. Hamm, 254 Mass. 268. All but one of the defendant’s requests that were refused were based upon assumed facts which the judge stated he did not find. It follows that he was not required to make the rulings requested. Order dismissing report affirmed.