Broker, Commission. Contract, Under seal.
At the hearing together in a municipal court of two actions of contract, the first by a woman, the owner of real estate, against a real estate broker for the amount of a deposit paid to the broker by a prospective customer in accordance with and as part of a contract in writing and under seal between the owner and the prospective purchaser, where the prospective purchaser refused to carry out the purchase; and the second action by the broker against the owner for a commission alleged to have been earned, there was evidence that at the time of the signing of the contract and the paying of the deposit the broker said to the owner, that "if the deal did not go through no commission will be paid and the deposit would be paid to her." A provision of the contract under seal between the owner and the prospective purchaser was that the owner would pay the broker a commission "when papers pass." The judge found for the owner in both actions. Held, that (1) It was not error to refuse to rule "[The broker] . . . is entitled to a commission as soon as an agreement was signed between [. . . the owner] and the Seller, [ sic]." (2) It was not error to refuse to rule, "The clause in the agreement as to when the commission is to be paid merely indicates the time beyond which the broker need not wait, it is not a condition of Payment."
BY THE COURT.
The second of these actions is by a broker to recover a commission alleged to be due on a contract for sale of real estate. The first is an action by an owner of real estate to recover from the broker a deposit made with him on account of an agreement to purchase, which the other party failed to carry out. The owner testified that at the time the agreement between her and the proposed purchaser was signed and the deposit was made by the latter, the broker said to her that "if the deal did not go through no commission will be paid and the deposit would be paid to her." If the judge believed this testimony touching the arrangements between the parties, the requests for instructions could not rightly have been given. The first request to the effect that the broker was entitled to a commission as soon as an agreement was signed ought not to have been given in view of all this testimony. The second request depended in part upon the soundness of the first; and in part upon the assumption that a paragraph in the agreement bound the owner in her relations with the broker. The agreement was under seal and the broker was not a party to it. There is no error of law disclosed on the record. John Hetherington Sons, Ltd. v. William Firth Co. 210 Mass. 8, 19. The evidence did not in any aspect call for the application of the principle of Alvord v. Cook, 174 Mass. 120.
Order dismissing report affirmed.