Contract, What constitutes. Agency, Existence of relation.
The owner of certain real estate authorized a broker to sell it for a certain sum. The broker showed it to one who offered to purchase it for a less sum and signed in duplicate a formal agreement in writing to that effect, delivering the papers to the broker, to whom he was to make an initial payment provided for in the agreement if the broker could get the owner to sign the agreement. The broker procured the owner's signature, left one copy of the agreement with him and took the other to give to the purchaser. Before the broker reached the purchaser, he received a telephone message from him that he did not wish to go further with the transaction. At the trial in a municipal court of an action by the owner against the purchaser, the judge found that the agreement signed by the defendant was an offer by him to the plaintiff and that the defendant selected the broker as his agent to present the offer to the plaintiff and to receive his acceptance in writing; and found for the plaintiff. Held, that the findings were warranted by the evidence, and that the action might be maintained.
In the action above described, it also was held that, it not appearing that the payment of the initial instalment was a condition precedent to the making of the contract, a finding, that that instalment became payable when the plaintiff executed the agreement and delivered it to the broker as the defendant's agent, was warranted.
De COURCY, J.
The defendants had been shown the plaintiff's house by one Fernandez, a real estate broker, who had been authorized by the plaintiff to sell it for $4,000. On a subsequent Monday evening the broker called on the defendants and they made an offer of $3,700 for the property, and signed in duplicate a formal written agreement to purchase at that price. The papers were delivered to Fernandez, and he was to receive the initial payment of $100 on Tuesday evening if he could get the plaintiff to sign them.
Fernandez obtained the signature of the plaintiff to the agreements between nine and ten o'clock Tuesday forenoon, left one copy with him and took the other to deliver to the defendants. At some time that forenoon McDonough telephoned to the broker's office that he did not wish to go any further in the transaction; but Fernandez did not receive the message until the afternoon, some hours after he had procured the plaintiff's signature. The defendants later refused to take the agreement tendered to them, and this action was brought to recover the first payment of $100. The judge of the Municipal Court found for the plaintiff, and his finding was sustained by the Appellate Division.
In view of the judge's general finding and his rulings on requests numbered 2 and 3, we must assume that he found, in effect, that the agreement was an offer proposed by the defendants, and that they selected Fernandez as their agent to take the offer to the plaintiff and receive his written acceptance. The facts stated in the report warrant the conclusion which the judge apparently reached, that when the defendants attempted to revoke their offer, it had been accepted, and that a binding contract had been completed in the manner intended by the parties. Nickerson v. Bridges, 216 Mass. 416, 420. Brauer v. Shaw, 168 Mass. 198. Boston Maine Railroad v. Bartlett, 3 Cush. 224. See Codman v. Deland, 231 Mass. 344. There was also warrant for the finding that the instalment of $100 was payable when the plaintiff executed the contract and delivered it to Fernandez, acting as the agent of the defendants for that purpose. It is not found that the payment was a condition precedent to the completion of the contract. Massachusetts Biographical Society v. Russell, 229 Mass. 524.
No error appearing on the record, the entry must be
Order dismissing report affirmed.