Executor and Administrator, Personal liability. Agent, Commission. Contract, Performance and breach, Construction.
If an administrator agrees in writing as such administrator to sell certain real estate, which is a part of the estate of his intestate, to a purchaser, who agrees to buy it, and also as such administrator agrees with a third person to pay to such third person a certain sum of money as a commission for procuring the purchaser, such administrator, who has no right to bind the estate of his intestate to sell the land or to pay the commission, is bound personally by his agreement with the third person.
An agreement in writing for the purchase and sale of land stipulated that a certain person, who procured the purchaser, should receive a commission of a certain sum of money to be paid to him by the seller "when title is passed," and such person signed at the bottom of the contract an agreement to accept "the commission as above." The purchaser attended at the time and place named for the delivery of the deed and the payment of the price and was ready and willing to pay for the land on receipt of a proper deed, but the seller tendered no deed and no conveyance of the land to the purchaser ever was made. Held, that the person who procured the purchaser could maintain an action of contract against the seller for the amount of his commission, the phrase "when title is passed" having been used merely to fix the time beyond which the plaintiff need not wait for his compensation and not to create a condition precedent to the payment of the commission.
BRALEY, J.
If it be assumed that the premises were part of the intestate's estate, the defendant, even if as vendor he purported to act in his representative capacity as administrator, is personally bound by the stipulations with the plaintiff. Luscomb v. Ballard, 5 Gray, 403, 405. Durkin v. Langley, 167 Mass. 577, 578. Lyman v. National Bank of the Republic, 181 Mass. 437, 438. Tuttle v. First National Bank of Greenfield, 187 Mass. 533, 535. Dunham v. Blood, 207 Mass. 512. King v. Stowell, 211 Mass. 246, 250, 251.
But, as there has been no conveyance, the defendant contends that because payment was to be made "when title is passed" the action has been prematurely brought. The contract of sale apparently had been entered into after the plaintiff procured a purchaser, and, payment of his commission not having been made conditional upon actual performance of the agreement, ordinarily it had been earned and was payable. Goodnough v. Kinney, 205 Mass. 203, 204. The purchaser attended at the time and place named for the delivery of the deed and the payment of the price; the defendant, however, did not attend, but made default. It is at least uncertain whether the purchaser, although desirous of completing the purchase, could have compelled specific performance in a court of equity, and the plaintiff, through the defendant's unexplained failure of performance, would be deprived under the construction contended for of the value of his services and eventually might lose his claim. Burk v. Schreiber, 183 Mass. 35, 36. Wenz v. Pastene, 209 Mass. 359, 364. The transfer of title merely designated the period beyond which the plaintiff need not wait for his compensation, which had been fixed at a definite sum, and the trial court correctly held that the defendant could not escape liability by setting up his own breach in bar. Alvord v. Cook, 174 Mass. 120, 124, 125. Carnes v. Howard, 180 Mass. 569. Bartow v. Parsons Pulp Paper Co. 208 Mass. 232, 234.
Judgment affirmed.