Whitkin v. Markarian

Jenney, J.

The terms of the report are not perfectly clear, but the case was considered and decided in the Municipal Court of the City of Boston and argued in this court on the basis that the plaintiff’s employment was to procure a customer ready, able and willing to purchase the defendant’s property upon terms approved by him. We consider it on that basis and hence cases *336 like Munroe v. Taylor, 191 Mass. 483 , and Noyes v. Caldwell, 216 Mass. 525 , do not control.

The judge properly could find that the defendant authorized the broker to sell his house for $8,000 subject to an existing mortgage, and gave him other terms of sale which he did not remember at the trial. Although the record is meagre, it appears that the plaintiff procured a customer, one Cox, who was willing to buy the house for $8,000, without reference to any other terms of sale; that the plaintiff reported this offer to the defendant, who’ said he was too busy to attend to the transaction and told the plaintiff to “fix it up;” that Cox gave the plaintiff as a deposit on account of the sale, his check for $100; that the check was at once handed by the plaintiff to the defendant who “laid . . . [it] on the plaintiff’s desk and said he did not think his wife would sign,” and further said “he wanted $8,000 net free of commission.” Cox, who apparently was present, offered to pay the sum stated and one half of the commission in addition, which offer the defendant refused. The defendant, knowing who the plaintiff’s customer was, raised no objection to his readiness, ability or willingness to perform his offer, to the terms of sale, except that he attempted • to get a larger amount than that for which he had authorized the sale of the premises. The judge found for the plaintiff.

At the close of the evidence the defendant made certain requests for rulings. The first five related to findings of fact and were properly refused for that reason. All the others were given except that by which the defendant asked the judge to rule that upon all the evidence the defendant was entitled to judgment.

It could have been found that the plaintiff had procured a customer, known and acceptable to the defendant, for a price for which he had authorized the sale of the property; that the terms of sale either were not in question or were such as necessarily followed from an unqualified acceptance of a positive offer; and that the defendant without good reason and without reference to the responsibility of the customer refused to go ¡forward in the transaction. Upon these facts the ruling requested could not properly have been given. Holden v. Starks, 159 Mass. 503 . Monk v. Parker, 180 Mass. 246 . Cohen v. Ames, 205 Mass. 186 . Goodnough v. Kinney, 205 Mass. 203 . Leland v. Barber, 228 Mass. 144 . It does not lie in the defendant’s mouth to claim, *337 in order to defeat the plaintiff’s recovery, that other evidence was necessary to prove that the customer was ready, able and willing to purchase. See Carpenter v. Holcomb, 105 Mass. 280 ; Mansfield v. Hodgdon, 147 Mass. 304 ; Tobin v. Larkin, 183 Mass. 389 ; Hutchinson v. Plant, 218 Mass. 148, 152 .

Order dismissing report affirmed.