Record v. Littlefield , 218 Mass. 483 ( 1914 )

Braley, J.

The plaintiff is a stranger to the contract of which specific performance is asked. But, having been recognized by the defendant as if she were the assignee, .her rights are the same as those of her husband, whose name alone appears as the proposed purchaser. Currier v. Howard, 14 Gray, 511. Wass v. Mugridge, 128 Mass. 394.

The decree rests on the finding of the judge, that the contract set out in the bill, executed by “Henry T. Anglin, Agent,” had been duly authorized by the defendant. It is settled that an agent appointed by paroi may make a binding contract for the sale of the real property of his principal, and, if the agent signs only his own name, the principal can be held, if upon the whole instrument the intention to bind him and not the agent personally is manifest. Emerson v. Providence Hat Manuf. Co. 12 Mass. 237. Williams v. Robbins, 16 Gray, 77. Baker v. Hall, 158 Mass. 361. Ledbetter v. Walker, 31 Ala. 175. It would follow, that, R. L. c. 74, § 1, cl. 4, 5, having been satisfied, the plaintiff, who has performed her part of the contract, would be entitled to the relief given. Dresel v. Jordan, 104 Mass. 407. Slater v. Smith, 117 Mass. 96.

But, even under the familiar rule that the conclusions of fact reached by the judge, which depend upon the credibility of witnesses and the weight of the evidence, will not be set aside unless plainly wrong, the finding cannot be sustained on the record. Taber v. Breck, 192 Mass. 355.

The evidence for the plaintiff leaves no doubt that the defendant authorized Anglin, a real estate broker, to find a customer who would give $7,000 for the farm, $500 of which was to be paid in cash and the balance secured by a mortgage on the property. It is said in Fitzpatrick v. Gilson, 176 Mass. 477, 478, that “when a broker has found a customer for that for which his principal has employed him to find a customer, the broker has performed his duty and has earned his commission. . . . Making or not making a contract with the customer produced, enforcing or not enforcing a contract, if made, are matters for the broker’s principal to do or not to do, as his ability and inclination determine; they are matters with which the broker is not concerned, and on which his right to a commission is not dependent.” The owner, however, is not precluded from going further, and the broker may be instructed and empowered orally not only to find a customer able and willing to buy, but to make a binding contract. Shaw v. Nudd, 8 Pick. 9. Heard v. Pilly, L. R. 4 Ch. 548. Lawrence v. Taylor, 5 Hill, 107. The conversation held over the telephone between Anglin and the defendant shows that Anglin informed him that a purchaser on the terms stipulated had been found. But the direction then given, “It is all right; go ahead,” did not include authority to make a contract in writing in accordance with the proposed terms of sale which would bind the defendant. Lyon v. Pollock, 99 U. S. 668. The broker furthermore never having been instructed to accept the promissory note of the purchaser in part payment of the amount required in cash, there is no contract which can be specifically enforced. Coddington v. Goddard, 16 Gray, 436. R. L. c. 74, § 1, cl. 4. Nor is the defendant estopped, as the plaintiff urges, from showing the limitations of the broker’s authority. The plaintiff’s husband was not compelled to deal with him alone. Before acceptance of the contract tendered he could have gone to the defendant and have ascertained the scope of the agency. Having failed to make any inquiry, the plaintiff cannot complain if it appears that the broker exceeded his powers. Dodd v. Farlow, 11 Allen, 426. Lowell Five Cents Savings Bank v. Winchester, 8 Allen, 109, 118, 119.

It is not contended that there is any evidence of part performance sufficient to take the case out of the statute under the third prayer of the bill. Williams v. Carty, 205 Mass. 396. And the evidence is insufficient to show ratification. The letters of the defendant and his attorney to Anglin, the appointment by the defendant with the plaintiff of the time and place for passing title, the period elapsing between the sale and the meeting for performance, during which the defendant apparently obtained the assent to the conveyance of other parties interested in the estate, the execution of the mortgage deed with its recital in the granting clause of a deed from the defendant to the plaintiff, and the mortgage note which had been prepared by the defendant’s counsel, the testimony that the defendant said he was to receive only $150 of the payment of $500 which had been actually made in cash, and the taking possession of the premises by the plaintiff, while circumstances of significance, do not charge the defendant either directly or by reasonable implication with notice or knowledge of the contract which had been delivered to and retained by the plaintiff’s husband, but never exhibited to the defendant. Combs v. Scott, 12 Allen, 493, 497. Foster v. Rockwell, 104 Mass. 167, 171, 172. The decree must be reversed, and the bill dismissed without costs.

Ordered accordingly.