Opinion
March 28, 1962.
Albert R. Mezoff for the defendant.
Morris Michelson for the plaintiff.
Exceptions overruled. The evidence warranted the finding that the plaintiff, a broker, having procured for the defendant buyer a contract with a seller for the purchase of cashmere, had earned his commission. The defendant's request No. 11 for a ruling to the contrary was properly denied. Request No. 7, based on the contention that there was no evidence that the seller was ready, willing, and able to sell on the defendant's terms, was rightly denied since the defendant, having already contracted with the seller, cannot now protest that he is unacceptable. Whitkin v. Markarian, 238 Mass. 334, 336-337. Spence v. Lawrence, 337 Mass. 355, 359. Of the remaining requests, Nos. 8 and 15 were for findings of fact ( Larson v. Jeffrey-Nichols Motor Co. 279 Mass. 362, 368) and Nos. 2, 3, 4, 5, 6, 16, 17, and 20 were not material. The latter related to noncompliance by the seller with certain conditions of the contract of sale, but it does not appear that the plaintiff's right to compensation depended upon the consummation of the sale. See Frankina v. Salpietro, 269 Mass. 292, 294-295; Alphen v. Bryant's Mkt. Inc. 329 Mass. 540, 542, and cases cited. There was no abuse of discretion in the denial of the motion for a new trial ( DeLuca v. Boston Elev. Ry. 312 Mass. 495, 497-498; Sharpe, petitioner, 322 Mass. 441, 444-445) or in the allowance of the plaintiff's motion to amend his declaration to conform to the evidence. Pizer v. Hunt, 250 Mass. 498, 504-505. Janevesian v. Esa, 274 Mass. 231, 232. Duquenoy v. Dorgan, 341 Mass. 28, 30.