To recover a commission a broker ordinarily is required to prove only that he produced a customer who was able, ready and willing to purchase on the seller's terms. Buono v. Cody, 251 Mass. 286, 290. Lieberman v. Cohn, 288 Mass. 327. Maher v. Haycock, 301 Mass. 594, 595. Barsky v. Hansen, 311 Mass. 14, 16. Magann v. Lawler Bros. Theatre Co. 312 Mass. 317. Church v. Lawyers Mortgage Investment Corp. of Boston, 315 Mass. 1, 8. His right to a commission is not affected by the failure of the customer and seller to enter into a binding agreement, or by the refusal of the seller to carry out the transaction. Fitzpatrick v. Gilson, 176 Mass. 477, 478-479.
We are of opinion that these contentions should be sustained. The jury could have found properly that the plaintiff's employment was the usual one, that is, one merely to produce a customer ready, willing and able to purchase on the defendant's terms, and that the written agreement that was to be prepared was to be no more than a convenient memorial or record of the terms of the bargain which had already been concluded in all essential details that the law would not supply. Bines v. Rosen, 263 Mass. 562. Beach Clarridge Co. v. American Steam Gauge Valve Manuf. Co. 202 Mass. 177, 182. Lieberman v. Cohn, 288 Mass. 327, 331. The jury could also have found that in drafting the written agreement which it prepared at the request of the plaintiff and Zieman, the defendant for the first time attempted to fix the time for the passing of papers, a subject matter which had not been discussed previously by the parties, and also provided therein that the defendant should place the insurance on the properties involved.
Whitkin v. Markarian, 238 Mass. 334, 336-337. Frankina v. Salpietro, 269 Mass. 292, 295. Lieberman v. Cohn, 288 Mass. 327, 332. Westlund v. Smith, 291 Mass. 96, 99. The statement of the rule that the act of the owner in entering into a binding purchase and sale agreement with the customer procured by the broker precludes him from thereafter questioning the customer's ability to make the purchase does not mean that nothing less can require the same result. An express oral acceptance of a customer by the owner, or an implied acceptance of the customer as to ability resulting from the owner's failure to raise any question or objection to the customer on that ground may be found to have the same effect as the execution of a formal purchase and sale agreement so far as the question of the customer's ability to purchase is concerned. Whitkin v. Markarian, 238 Mass. 334, 336. Laidlaw v. Vose, 265 Mass. 500, 503. Stern v. Old Colony Trust Co. 276 Mass. 456, 457. Palmer Russell Co. v. Rothenberg, 328 Mass. 477, 481. Snowden v. Cheltenham, 337 Mass. 295, 297. Spence v. Lawrence, 337 Mass. 355, 358-359.
Cohen v. Ames, 205 Mass. 186, 188. Bines v. Rosen, 263 Mass. 562. Frankina v. Salpietro, 269 Mass. 292, 295. Henderson Beal, Inc. v. Glen, 329 Mass. 748. The failure of the defendant to sign or to accept the check was evidence that he had not agreed to all the terms but does not require such a finding. Lieberman v. Cohn, 288 Mass. 327, 330. That the defendant was not the sole owner was immaterial. McKallagat v. LaCognata, 335 Mass. 376.
The instant case is controlled by Whitkin v. Markarian, 238 Mass. 334, 336-337. See also Frankina v. Salpietro, 269 Mass. 292, 295; Stern v. Old Colony Trust Co. 276 Mass. 456; Lieberman v. Cohn, 288 Mass. 327; Seigel v. Cambridge-Wendell Realty Co. 323 Mass. 598; Palmer Russell Co. v. Rothenberg, 328 Mass. 477, 481. The same principle has been recognized in Witherell v. Murphy, 147 Mass. 417, Holden v. Starks, 159 Mass. 503, Maksoodian v. Keller, 243 Mass. 249, 251, and Alphen v. Bryant's Market, Inc. 329 Mass. 540, 542.
Frankina v. Salpietro, 269 Mass. 292, 295. Stern v. Old Colony Trust Co. 276 Mass. 456. Lieberman v. Cohn, 288 Mass. 327. Westlund v. Smith, 291 Mass. 96, 99. Seigel v. Cambridge-Wendell Realty Co. 323 Mass. 598. Palmer Russell Co. v. Rothenberg, 328 Mass. 477, 481. Exceptions overruled.
Consequently there was no error in overruling the demurrer or in ordering the conveyance of the property to the plaintiff upon the payment in accordance with the written agreement. Buono v. Cody, 251 Mass. 286, 291. Laidlaw v. Vose, 265 Mass. 500, 505. Lieberman v. Cohn, 288 Mass. 327, 331. Church v. Lawyers Mortgage Investment Corp. of Boston, 315 Mass. 1, 6. The female defendant was ordered to pay the plaintiff $300, the value of the two chandeliers she removed from the big house when she vacated around June 17, 1950.
We do not agree with the defendants that the evidence precluded any finding other than that they intended that there should be no agreement between them until the writing was executed and that any finding to the contrary would be plainly wrong. Lieberman v. Cohn, 288 Mass. 327, 330. Sherman v. Briggs Realty Co. 310 Mass. 408, 413. Church v. Lawyers Mortgage Investment Corp. of Boston, 315 Mass. 1, 5-6. Kilham v. O'Connell, 315 Mass. 721, 724-725. Seigel v. Cambridge-Wendell Realty Co. 323 Mass. 598.
" There was no error. The judge was not required to find that the buyer was able to perform by January 1. Codman v. Beane, 312 Mass. 570, 574. Union Market National Bank v. Derderian, 318 Mass. 578, 584. Strachan v. Prudential Ins. Co. 321 Mass. 507, 508. By signing the acceptance of the proposal containing that date for delivery of the deed, the defendant did not waive the condition or conclusively accept the buyer as then able to perform. The judge could find that the contract with the broker was to pay a commission "if the deal went through," in other words, that the brokerage contract was to complete the sale by January 1, 1947. John T. Burns Sons Inc. v. Hands, 283 Mass. 420, 422. Lieberman v. Cohn, 288 Mass. 327, 329. Spritz v. Brockton SavingsBank, 305 Mass. 170, 171. Staula v. Carrol, 312 Mass. 693, 694. Corleto v. Prudential Ins. Co. 320 Mass. 612, 616. Hence, cases like Stone v. Melbourne, 326 Mass. 372, are of no application.
He had earned his commission when he produced a customer who was ready, able, and willing to take a lease on the terms upon which it had been offered by the defendant. Green v. Levenson, 241 Mass. 223, 224. Lieberman v. Cohn, 288 Mass. 327, 330. Sherman v. Briggs Realty Co. 310 Mass. 408, 413. Barsky v. Hansen, 311 Mass. 14, 16. Magann v. Lawler Bros. Theatre Co. 312 Mass. 317, 318. Church v. Lawyers Mortgage Investment Corp. of Boston, 315 Mass. 1, 6. Chapin v. Ruby, 321 Mass. 512, 515. The exceptions are sustained and the new trial is to be confined to the first count relative to a lease.