322 Mass. 743

December 31, 1947

Order dismissing report affirmed. This is an action of contract to recover a broker's commission for the sale of real estate. The defendants listed certain real estate for sale with various brokers, including the plaintiff and one Chuckran, both of whom at different times interviewed as a prospective purchaser one Zervas. Celia had been given by the defendants a price of $15,000 and at his second interview with Zervas stated that figure to him. Previously Chuckran had given Zervas a price of $18,000. Zervas was interested in the suggestion of $15,000, and at his request Celia obtained for him the tax assessment and a statement of the earnings of the property. Zervas then offered through Celia to pay $13,000, which offer was refused by the defendants. Later Celia reported to them an offer by Zervas of $13,500 which the defendant Frank Villa said he would think over. About two weeks later Zervas went to Celia's home but found him out. Zervas then went to Chuckran who had last approached him between six months and a year before. After looking at the property, Zervas and Chuckran went to the home of the defendants and after a first offer of $14,000 Frank Villa accepted from Zervas an offer to pay $15,000. A written agreement was signed by the parties the same afternoon and in it was a stipulation that Chuckran should receive a commission of $250 although five per cent was the usual commission. The judge in the District Court of Brockton found for the plaintiff on the ground that he was the efficient cause of the sale, and made a voluntary report to the Appellate Division which ordered the report dismissed. There was evidence warranting the finding of the judge. The case is governed by Provost v. Burgin, 287 Mass. 273, and Corleto v. Prudential Ins. Co. 320 Mass. 612.


322 Mass. 743

January 2, 1948

Order denying jury issues affirmed. This is an appeal from an order of the Probate Court in the matter of the alleged will of Zenaide Jubinville, deceased, denying a motion of the contestant for the framing of issues for trial by jury. The motion was heard on statements of expected evidence and also upon oral testimony. Upon consideration of these statements and an examination of the testimony, we conclude that there was no error in the denial of this motion. See Hannon v. Gorman, 296 Mass. 437; Hiller v. Hiller, 305 Mass. 163.