Opinion
Opinion, July 8, 1944.
Real Estate. Brokers' Commissions.
The words "sale" and "sell" in contracts between real estate salesmen and the owners of property who employ them have well defined meanings that do not restrict them to cover executed sales alone. The words "to sell" or "to make a sale" in such contracts mean to furnish the owner of the property with a purchaser "able, ready and willing" to buy on that owner's terms.
ON EXCEPTIONS.
Action by the plaintiff to recover a commission on the sale of real estate of the defendant. On September 11th the plaintiff had presented a customer "able, ready and willing" to buy the property at defendant's figure, but, upon request for the papers required for drafting the deed, the defendant refused to complete the trade because a competitor of the plaintiff had previously presented a customer willing to buy but whose ability to buy depended on his ability to raise money for the purchase price. On September 13th, the customer presented by plaintiff's competitor had secured the money necessary and defendant sold the property to him and paid the competitor a commission. The referee to whom the case was referred found for the plaintiff. Defendant excepted. Exceptions overruled. The case fully appears in the opinion.
Armand A. Dufresne, for the plaintiff.
Clifford Clifford, for the defendant.
SITTING: STURGIS, C. J., THAXTER, HUDSON, MANSER, MURCHIE, CHAPMAN, JJ.
Defendant's exceptions to the acceptance of a referee's report awarding plaintiff a commission on the sale of real estate, the right to except on questions of law having been reserved, allege seven grounds of error, but all of them must be held groundless if the record contains competent evidence that the plaintiff sold the property in question.
There is no conflict of testimony as to the meaning and effect of the words exchanged between the parties to express their contractual undertaking, although they do not agree upon the phrasing. It is undoubted that on plaintiff's solicitation of an opportunity to sell defendant's tenement house when other agents were already working on it, there was mutual understanding that he should be one of several salesmen and that the agent who made a sale should get the commission.
The conversation between the parties took place in early August. On September 11th the plaintiff took a prospective customer to the premises, went over them with the defendant and the prospect, and accepted a cash payment on account in a transaction which fixed the selling price at the figure authorized by defendant. Upon request for the papers which would permit the drafting of a deed, the defendant refused to complete the trade because another of her agents had tentatively arranged a sale several days earlier conditional upon the ability of the intended purchaser to raise a part of the purchase price on a mortgage loan and defendant had agreed to wait until September 13th for decision as to whether the loan would be available.
On September 13th the loan was arranged and defendant sold the property under the tentative sale, paying a commission to plaintiff's competitor who had produced the purchaser thereunder. She now contends that her conversation with plaintiff contemplated a completed sale with deed delivery and payment of the purchase price, and that if the plaintiff did not so understand it there was no meeting of the minds and no contract.
The words "sale" and "sell" in contracts between real estate salesmen and the owners of property who employ them have well defined meanings that do not restrict them to cover executed sales alone. As stated in Walker et al. v. Russell, 240 Mass. 386, 134 N.E. 388, the words "to sell" or "to make a sale" in such contracts mean to furnish the owner of property with a purchaser "able, ready and willing" to buy on that owner's terms. The plaintiff was entitled to his commission if he found such a purchaser before any of his competitors and the referee found that he did. A competitor, it is true, had earlier found a prospect who was "ready and willing" to buy, but that intended customer was not "able" to do so and had not committed himself to pay the purchase price on September 11th when the plaintiff negotiated a sale of property then unsold. Having done so, he is entitled to the agreed compensation.
Exceptions overruled.