Stone v. Melbourne , 326 Mass. 372 ( 1950 )

326 Mass. 372 (1950) 94 N.E.2d 783

LELAND A. STONE & another
vs.
JOHN W. MELBOURNE & another.

Supreme Judicial Court of Massachusetts, Hampden.

September 21, 1950. November 1, 1950.

Present: QUA, C.J., LUMMUS, SPALDING, WILLIAMS, & COUNIHAN, JJ.

E.C. Snow, for the plaintiffs.

T.J. Donnelly, for the defendants.

LUMMUS, J.

In this action against the owners of real estate in Springfield by real estate brokers to recover a commission of $400 for obtaining a customer, a verdict was directed for the defendants. The plaintiffs excepted.

There was evidence tending to prove the following. The defendants employed the plaintiffs to procure a buyer at a commission of five per cent. The plaintiffs procured one Shaw and his wife as buyers, and the Shaws entered into a written contract, the validity of which is not questioned, for the purchase and sale of the real estate for $8,000, subject to the ability of the buyers to obtain a certain mortgage for $7,000. The buyers were able to obtain such a mortgage. But the buyers refused to perform their contract to buy. After that — though nothing appears to turn on it — the defendants made a sale at the same price to one Stanhope, who obtained a similar mortgage.

The evidence was not that the passing of title was required for the earning of a commission. The plaintiffs were merely to "procure a buyer," and the commission was to be payable "for obtaining a buyer." By entering into a valid contract of sale and purchase with the Shaws, the defendants accepted them as customers able, ready and willing to buy, and made unnecessary any further proof that they were such. Ward v. Cobb, 148 Mass. 518. Burnham v. Upton, 174 Mass. 408. Roche v. Smith, 176 Mass. 595, 597. Hutchinson v. Plant, 218 Mass. 148, 152, 153. McCarthy v. Reid, 237 Mass. 371, 372. The case of Johnson v. Holland, 211 Mass. 363, is on all fours with the present case. The direction of a verdict for the defendants was error.

Exceptions sustained.