CLINTON ALPHEN & another vs. BRYANT'S MARKET, INC., and another.

RONAN, J. This is an appeal from a final decree ordering the defendants Bryant's Market, Inc., and Joseph Buchalter to pay to the plaintiffs the amount found to be due for procuring a customer who was able, willing, and ready to

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buy the business of the corporate defendant in accordance with the terms submitted to them by the individual defendant.

The judge made a report of the material facts and we have a transcript of the evidence. The evidence has been examined especially with reference to the various issues of fact as to which, it is contended, the conclusions of the judge were erroneous. The evidence consists entirely of oral testimony, much of which was of a conflicting nature and whose reliability depended to a great extent upon the appearance and manner of the witnesses whom the judge saw and heard. His findings cannot be disturbed unless shown to be plainly wrong.

We summarize briefly the facts found by the judge together with the facts we find for ourselves. The defendant Buchalter had acquired the Bryant grocery and provision store at a foreclosure sale under a mortgage held by the creditors and thereafter supervised and controlled the running of the store. He was one of the four stockholders and had full authority to act for them in disposing of the business. Buchalter promised to pay the plaintiffs, who were associated in carrying on a real estate commission business, a commission of ten per cent if they procured a customer who was able, ready, and willing to purchase the market. About the middle of May, 1950, one of the plaintiffs brought one Sarkisian to the store. After a conference with Buchalter, Sarkisian spent four days observing the business done by the market. In the last of May Buchalter and Sarkisian entered into an oral agreement by which Buchalter was to sell for $15,000 in cash and a mortgage for $15,000 maturing in eighteen months and payable $200 weekly. The market did a cash business and there was little or nothing due on bills receivable and Buchalter was to pay the bills due. Buchalter told Sarkisian that all that he wanted was to see the color of his (Sarkisian's) money, "to show me good faith . . . and you can take the place. I will turn the keys over to you, lock, stock and barrel." Sarkisian said, "we have a deal," and Buchalter

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said, "the store is yours." They shook hands. Sarkisian understood from Buchalter's remarks that he wanted a deposit, the amount of which was not mentioned. Sarkisian had no money with him, and a meeting was arranged for the next day at which Sarkisian was to make a deposit. The parties met the next day but the conference lasted only a few minutes after Buchalter stated that he could not make a satisfactory settlement with one Bryant. The transaction ended there and was never completed by a sale.

There is nothing in the defendants' contention that no commission was earned until a sale had been effected. The evidence shows, and the judge was not wrong in finding, that the promise of Buchalter was the ordinary one made by a seller to a broker to pay a commission if the latter procured a customer able, ready, and willing to buy on the seller's terms. The plaintiffs were not required to bring about a sale and the payment of their commission was not dependent upon a sale being effected. They were entitled to their commission when they did all for which Buchalter promised to pay a commission. Walker v. Russell, 240 Mass. 386, 390. Maher v. Haycock, 301 Mass. 594. Rich v. Mezzetti, 323 Mass. 669. Palmer Russell Co. v. Salah, 326 Mass. 634.

Sarkisian was ready, able, and willing to buy. He so testified and also disclosed the source of his money. Buono v. Cody, 251 Mass. 286. Driscoll v. Bunar, 328 Mass. 398. The request of Buchalter to Sarkisian at the second last conference to bring a deposit to show Sarkisian's good faith could be found to have been complied with when Sarkisian was ready at the last conference to tender a certified check for $500 but which he had no opportunity to offer when the conference suddenly terminated because of the inability of Buchalter to settle his controversy with Bryant. Buchalter had accepted Sarkisian as a customer, and Buchalter apparently considered the amount of the deposit of such minor importance that he did not state any amount. He was satisfied if it demonstrated Sarkisian's good faith to carry out the transaction. See Maksoodian v. Keller,

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243 Mass. 249. That no time was fixed for the passing of papers was not material. That was one of the details of the transaction which would be supplied by the law. Laidlaw v. Vose, 265 Mass. 500, 505. Church v. Lawyers Mortgage Investment Corp. of Boston, 315 Mass. 1, 5-6. Whether the stock in trade was included in the purchase price was a question of fact. Sarkisian had seen the stock in trade. He was interested in having it inventoried to see what it amounted to but whether much or little it did not affect the purchase price. There was testimony that Buchalter told Sarkisian that on the payment of $15,000 in cash and the giving of the mortgage "you can take the place . . . lock, stock and barrel." We also think the purchase price included the stock in trade.

The parties made an oral agreement to buy and sell. They desired to have it incorporated in writing. 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.

The final contention is that the acceptance of Sarkisian was conditioned upon Buchalter making satisfactory terms with one Bryant to free Buchalter from a restraining order which Bryant had obtained on February 14, 1949, and which was still in effect. There was evidence that Bryant had for six months been associated with the plaintiffs, and that one or both of the plaintiffs knew of the existence of the order and had been informed that Bryant was agreeable to a sale in any amount in excess of $20,000 so that he could get $10,000 for what he claimed was his interest in the store. On the other hand, there was evidence that Sarkisian did not know of this restraining order until after he began dealing with Buchalter; that the offer of Buchalter to pay the

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plaintiffs a commission made no mention of this order or that the offer was dependent on having the restraining order discharged. At the final conference, Buchalter took Bryant one side, and when Bryant who wanted $10,000 refused Buchalter's offer of $500, Buchalter returned to the conference and left after stating that to go on would be a waste of time. We do not agree with the defendants that Buchalter's offer to pay a commission was made dependent on his ability to settle with Bryant. We are of opinion that his offer to pay a commission was not contingent on this fact but on the other hand was an absolute and unconditional offer to pay if the plaintiffs succeeded in obtaining a customer who was able, ready, and willing to pay $30,000 for the business of Bryant's Market, Inc. The fact that Buchalter could not settle with Bryant was no bar to the maintenance of this action any more than the action would be barred if Buchalter did not own the subject matter of the proposed sale. Buono v. Cody, 251 Mass. 286, 291. Isenberg v. Williams, 306 Mass. 86, 89. Coney v. Brookline Savings Bank, 327 Mass. 527, 528-529.

The final decree is affirmed with costs of the appeal.

So ordered.