Agency. Broker. In an action by a broker for a commission for procuring an exchange of real estate the plaintiff contended that the customer, alleged to have been procured by the plaintiff, told his broker that he was ready to make the exchange in question and that the broker told this to the plaintiff and the plaintiff told the defendant who refused to go on with the trade. Held, that it was not necessary to consider what the rights of the parties would have been if the customer after telling his broker that he would make the exchange repudiated the transaction, as the evidence would not warrant a finding that the customer told his broker that he would make the exchange.
LORING, J.
This is an action brought to recover a broker's commission for procuring some one to make an exchange with the defendant for the defendant's farm in Reading.
No contract for an exchange was in fact made, but the plaintiff contends that he has made out a case within Fitzpatrick v. Gilson, 176 Mass. 477, and Cadigan v. Crabtree, 179 Mass. 474, 481.
The case at bar is unlike Fitzpatrick v. Gilson in one respect. In the case at bar no customer was in fact introduced to the defendant, and the terms of a trade were not in fact arranged, which trade subsequently fell through not through the fault of the customer but through the fault of the defendant.
More than that, the person who, the plaintiff contends, was the customer secured by him testified that he never was willing to make the exchange.
All that the plaintiff has asserted is that the customer told his broker that he was ready to make the exchange, and the broker told the plaintiff and the plaintiff told the defendant; and thereupon the defendant refused to go on with the trade.
It might be argued that a broker does not earn his commission until he produces a customer, and that in the case at bar he had not done so because the customer refused to honor his broker's statement that he would make the exchange; that in such a case what the defendant got from the plaintiff was a lawsuit and not a customer. But we do not find it necessary to make a decision on that point because we are of opinion after a careful examination of the evidence that the jury were not warranted in finding that the customer told his broker that he would make the exchange.
Exceptions sustained.