Pleading, Civil, Answer. Contract, What constitutes, In writing. Evidence, Extrinsic affecting writings.
It here was pointed out, that in the trial of an action of contract the plaintiff's failure to perform a condition precedent by reason of which the contract never took effect may be shown under an answer that contains only a general denial. In the present case an amendment of the answer alleging non-performance of the condition precedent was allowed.
In an action by a real estate broker on a contract alleged to have been made by an application in writing of the defendant to the plaintiff to procure a first mortgage for $30,000 on certain real estate of the defendant who agreed to pay a commission of two and a half per cent for procuring such mortgage, the defendant may show in defence that the defendant, when he made the application, also had applied to the plaintiff to procure for him a second mortgage for $10,000 on the same property subject to a first mortgage for $30,000, and that it was understood and agreed between the parties that no commission should be paid to the plaintiff for procuring the first mortgage for $30,000, unless he also had procured the second mortgage for $10,000, and that the plaintiff never procured such second mortgage.
BRALEY, J.
The plaintiff having procured the first mortgage loan had earned his commission if the contract declared on was unconditionally delivered by the defendant. Munroe v. Taylor, 191 Mass. 483. Cohen v. Ames, 205 Mass. 186.
It is the defendant's contention that the parties understood that the contract was not to be binding unless the plaintiff procured a second loan or mortgage on the property, which has not been done, and this defence was open under the answer of a general denial. West End Manuf Co. v. P.R. Warren Co. 198 Mass. 320.
The offer of proof as stated by the counsel did not tend to modify or vary the terms of the contract, but the evidence, if believed by the jury, showed that the agreement relied on never was made. Young v. Hayes, 212 Mass. 525, 531, 532, and cases cited.
The ruling excluding the testimony having been erroneous, the verdict ordered for the plaintiff must be set aside.
Exceptions sustained.