Edward T. Harrington Co. v. Waban Rose Conservatories, 222 Mass. 372, 373-374. Carpenter v. Blake, 251 Mass. 47, 49. Ivas v. Galligan, 271 Mass. 410, 413-415. Zakszewski v. Kurovitzky, 273 Mass. 448, 449-450.
When the defendant and the customer came to make the trade nothing was realized above the $350,000. Therefore by the terms of the employment no commission was due. Munroe v. Taylor, 191 Mass. 483. Noyes v. Caldwell, 216 Mass. 525. Carpenter v. Blake, 251 Mass. 47. Pagum v. White, 259 Mass. 437. Staula v. Carrol, 312 Mass. 693. Rich v. Mezzetti, 323 Mass. 669. There is nothing to the contrary in Henderson Beal, Inc. v. Glen, 329 Mass. 748, cited by the plaintiffs. We are accordingly of opinion that there was no error in denying the motion to vacate the rule to the master, or in overruling the exceptions and confirming the master's report, and that there was no abuse of discretion in denying the motion to recommit.
The court said, "The significant term of the agreement was that the plaintiff was to have as his only commission `whatever amount he obtained for said properties in excess of $10,000.' There could hardly be any amount `obtained' unless the title should pass" (page 694). Other cases to the same effect are Noyes v. Caldwell, 216 Mass. 525, Carpenter v. Blake, 251 Mass. 47, and Pagum v. White, 259 Mass. 437. If the agreement in the case at bar was that the defendant was to "get $21,000," and that the plaintiff was to receive as his compensation only the amount received above that sum, the plaintiff, under the cases just cited, could not recover.
The broker was denied a commission. See also Carpenter v. Blake, 251 Mass. 47. In Pagum v. White, 259 Mass. 437, the broker was to have as a commission the excess of the price obtained above $10,500.
There was here no misrepresentation by the party who made the agreement with the principal or by the broker, as in McCarthy v. Reid, 237 Mass. 371, and Burnham v. Upton, 174 Mass. 408. In Bemister v. Hedtler, 249 Mass. 40, 43, and in Carpenter v. Blake, 251 Mass. 47, 49, it was the other party to the transaction and not, as here, the principal who refused to consummate it. The defendant's requests for rulings that the plaintiff was not entitled to recover and requests which contain assumptions of misrepresentations by the plaintiff were rightly denied.
Cadigan v. Crabtree, 179 Mass. 474, 484. Cohen v. Ames, 205 Mass. 186, 187, 188. Carpenter v. Blake, 251 Mass. 47. Goldman v. Eisenberg, 256 Mass. 566. Goldstein v. Ziman, 259 Mass. 430. Zakszewski v. Kurovitzky, 273 Mass. 448. Whatever be the thing that must be accomplished in order to earn a commission, the offer of the owner, in the absence of express words or plain indication to the contrary ( Wheelock v. Globe Construction Co. 195 Mass. 456, 460), will not be construed as an offer to pay a commission if the efforts of the broker shall be merely a contributing cause of its accomplishment. If that were enough, several independent brokers might earn separate commissions upon one transaction. The broker must show that his efforts were the efficient cause, or, as it is sometimes put, the predominating efficient cause, of the accomplishment of that which the offer required as the basis of a commission.
It was no term of the employment that the broker should divide his commission with one who had nothing to do with his transaction. The judge could not rule that the offer required that a sale must be completed before any sum was due. Noyes v. Caldwell, 216 Mass. 525; Munroe v. Taylor, 191 Mass. 483, and Carpenter v. Blake, 251 Mass. 47, are not in point here. The defendants requested the judge to instruct the jury: "If the jury shall find that . . . [the customer] never came to any agreement with the defendants or either of them as to the time for completion of the bargain, or whether a warranty or quitclaim deed was to be given, or other terms that were to govern the rights of the parties, then the verdict must be for the defendants.
In somewhat similar cases, ameliorating circumstances often are found which call for a different result. Munroe v. Taylor, 191 Mass. 483. Clark v. Hovey, 217 Mass. 485, 487. Carpenter v. Blake, 251 Mass. 47. Brown v. Jacobs, 254 Mass. 474. Lord v. Williams, 259 Mass. 278. Pagum v. White, 259 Mass. 437. This interpretation may be not that which an inexperienced owner might think the contract to mean. But where cases arise not fairly distinguishable in their facts from Alvord v. Cook, 174 Mass. 120, and Rosenthal v. Schwartz, 214 Mass. 371, the rule there established must be followed.