Drury v. Newman , 99 Mass. 256 ( 1868 )

Colt, J.

The point now made, that the defendant’s answer admits the allegations in the plaintiff’s declaration, was not suggested at the trial. Whatever its merits, it is not now available to the plaintiff. If the objection had been made in time, the defendant, would not have been deprived of an opportunity to amend his answer.

The only question submitted is, as to the sufficiency of the evidence to support the declaration. Both counts seek to recover the usual commissions for services as a broker in procuring a purchaser for the unexpired lease of the defendant’s store. Such commissions, by the plaintiff’s own showing, were not due unless a sale was actually completed. No sale ever took place nere. It may be that the plaintiff performed valuable services under a contract which the defendant prevented him from fully completing. No such claim is set forth here; and it is well settled that for such services he must declare specially, if the contract is still unrescinded.

The case of Cooke v. Fiske, 12 Gray, 491, is distinguishable from this, for there the agreement, which was for the charter of a vessel, was completed verbally, although not reduced to writing. It was obligatory, and the defendant mipbt have enforced it. The plaintiff in that case was therefore entitled to his commission for procuring the charter. Here the evidence does not support the declaration.

It is unnecessary to consider whether the terms offered agreed with those proposed by the defendant or not; because there was never any binding agreement between the defendant and the proposed purchaser. Exceptions overruled.