McAuslan v. Nolan

Braley, J.

This is an action of contract by the plaintiffs, a firm of brokers, for a commission on an alleged sale of real property of the defendant. The plaintiffs’ counsel, after the introduction of the evidence of one Pecker, their employee, who had charge of the negotiations, and of the plaintiff McAuslan, stated, that he had further witnesses. While the defendant’s testimony, in substance, was in direct contradiction, the jury would have been warranted in finding on the evidence of Pecker and McAuslan the following facts. '

Pecker called on the defendant, and asked if he could have the selling of her property at 18 Newbury Street, Boston. The defendant said that another party had an option which would not expire for two or three days. The property, however, was for sale for $46,000, of which she would take $6,000 in cash, a lease for five years of the entire building with an option of two year's more, the rental to be $4,000 a year. The defendant was ‘ ‘ to pay the expenses, except the interest on two mortgages ... on the premises,” and the interview ended. But two or three days later Pecker called again and told the defendant that he had with him some signed agreements which did not call for a lease of the *365 building, and “that there was not enough cash involved.” The defendant objected to the agreements and told him the terms upon which “she would convey the premises, ” namely, $6,000 in cash, a lease for five years on the entire building at $4,000 a year, pay all the carrying charges, taxes and repairs except the interest on two mortgages, and also said that she would take “a receipt for $9,000 in rent which she would accept as part payment of the purchase price.” Immediately after this conversation, new agreements of sale were prepared, which were signed by one G. M. Ross, and delivered to the defendant by Pecker, who said that the agreements complied with her request as to terms. The defendant, however, further said, “that she could not see anything the matter with them, but that she would submit them to her attorney before signing them.” The defendant after some delay told Pecker in response to his inquiry that she had not been able to see her attorney, and later informed him “that she did not like the terms of the agreement and, in fact, that she had decided that she did not want to sell anyway.” This witness also testified that the defendant never asked him to sell the property, and that the defendant had said to him, in substance “that she did not care to deal with him.” In reply to McAuslan's inquiry why she had refused to sign the agreements, she declined to discuss the question, and referred him to her counsel who would give “a full explanation of her reasons for not signing the same.” And after McAuslan told him what had been done he was informed that the defendant “felt she was not indebted to the plaintiffs for the commission.”

It is obvious that on such findings there was neither an express, nor an implied contract, and the plaintiffs had failed to show that either a commission or reasonable compensation for services rendered, had been earned. Fitzpatrick v. Gilson, 176 Mass. 477, 478 . Barton v. Powers, 182 Mass. 467 . Edward T. Harrington Co. v. Waban Bose Conservatories, 222 Mass. 372 .

While the plaintiff did not expressly rest, and called Ross the proposed purchaser, on whose uncontradicted evidence it .could be found not only that he was unable to pay in cash *366 the amount required, but was in the employment of the plaintiff, of which fact the defendant was ignorant, it is unnecessary to consider these questions. The judge, at the close of his evidence, announced that he should order a verdict for the defendant.

The verdict was ordered rightly. The plaintiffs had failed, as matter of law, to show any contract for reasons previously stated. Their subsequent offer of proof, that “Ross had a party at his command ready to take the property,” which the judge rejected, as well as the rulings and comments on the evidence of Ross, to which the plaintiffs excepted, are immaterial.

Exceptions overruled.