Broker, Commission.
If an owner of real estate stated to a real estate broker that he wished to receive $5,000 for the sale of his property, and the broker stated that he could "get $5,500," and the owner then agreed that the broker "could retain for his commission" all above $5,000 which he "could secure," the broker does not earn a commission by securing a customer with whom the owner makes an agreement in writing for the sale of the land at $5,500, if the sale is abandoned without fault on the part of the owner and because the purchaser is unable to secure funds or make financial arrangements to complete the purchase.
WAIT, J.
These exceptions must be overruled. The judge has found that the contract between the parties was not such as the plaintiff alleged in his declaration; but was an undertaking by the defendant to pay to the plaintiff all above $5,000 that he received for the property which the plaintiff was authorized to sell for him. The judge further found that the defendant did not receive anything above the $5,000; that no sale resulting in the receipt of a purchase price was ever consummated; and that the defendant did not, by any wrongful conduct on his part, contribute to the result.
There was evidence to justify these findings. They dispose of the case. The rulings requested by the plaintiff were accepted by the judge so far as they were consistent with the facts as found by him, and were denied only when inconsistent with those facts.
The requests of the defendant were given proper effect. The case is well within the authority of Munroe v. Taylor, 191 Mass. 483. There was no fault of the defendant which would make applicable the principle which underlies Walker v. Russell, 240 Mass. 386. See also McCarthy v. Reid, 237 Mass. 371; Bemister v. Hedtler, 249 Mass. 40.
Exceptions overruled.