Contract, Performance and breach. Broker. Agency, Commission. The owner of certain real estate agreed in writing to sell it to a purchaser for $10,000 and to convey it "by a good and sufficient deed . . . conveying a good and clear title . . . free from all encumbrances" except a certain mortgage and a lease, the purchaser paying $500 at the delivery of the agreement, and agreeing to pay $4,500 in cash at the time of the delivery of the deed and the balance by a note secured by a mortgage. Simultaneously with the execution of the agreement, the owner and a broker whom he had employed to procure the purchaser made an agreement in writing providing that the broker should receive $500 "for his full compensation in the matter," which the owner "agrees to pay" and that "this $500 shall not be paid from the first $5,000 paid" the owner, but "shall be paid . . . from the first $500 received" by the owner from the purchaser "after the $5,000 has been paid. In other words," the broker "will not make any claim for commission unless" the owner "receives more than $5,000 in cash from the sale." Because of certain restrictions on the property of which neither the broker nor the owner had actual knowledge when their agreement was made, the owner failed to carry out his agreement with the purchaser and received no more money from him. Held, that the broker could not maintain an action against the owner for his commission, either on the contract or on a quantum meruit.
RUGG, C.J.
This is an action to recover for services as a real estate broker. The plaintiff was employed by the defendant to sell certain real estate, and he procured a purchaser who executed a contract for the sale of it to him by the defendant. Simultaneously with this contract the following agreement was entered into between the plaintiff and the defendant:
"It is agreed by and between Ewen A. Clark, broker, and Freeland E. Hovey, owner, that concerning the agreement for sale of property 2 and 6 Cambridge Street, Boston, from Hovey to Jeremiah Green, for the sum of $60,000 that said Clark agrees to accept the sum of $500 in full payment of commission and for his full compensation in the matter, and said Hovey agrees to pay said sum.
"It is further agreed by both parties that this $500 shall not be paid from the first $5,000 paid Hovey, of which $500 has been paid to-day, but shall be paid by Hovey to Clark from the first $500 received by Hovey from Green after the $5,000 has been paid. In other words, Clark will not make any claim for commission unless Hovey receives more than $5,000 in cash from the sale."
The contract for sale was never carried out because the defendant could not give a good title by reason of certain restrictions. The question is whether, under these circumstances, the plaintiff is entitled to his commission.
The rights of the parties depend upon the terms of their agreement, which is in writing and not ambiguous. It fixes the price which the plaintiff was to receive. It stipulates in unequivocal words that the compensation shall not be paid by the defendant until after he has received $5,000 on account of the sale. As matter of construction, this means that it is a condition to his being able to recover any commission that the defendant shall have received $5,000 in cash from the sale. Its effect is not, as in some of the cases relied on by the plaintiff, to fix a time beyond which the broker shall not be called upon to wait for his pay, but it establishes a moment before the arrival of which he cannot ask for his compensation. There is nothing in the record to indicate that the employer of the broker has failed through any volition of his own to carry out the contract.
The written agreement between the parties supersedes the ordinary rule that the broker has earned his commission when he has procured the execution of a valid agreement for sale.
It follows that the judgment of the lower court was wrong. In accordance with St. 1913, c. 716, § 2, the entry may be
Judgment for the defendant.