343 Mass. 774

November 15, 1961

Exceptions overruled. The defendant excepted to the denial of its motion for a directed verdict in an action brought by the plaintiff to recover for personal injuries sustained by her in a fall on an alleged unnatural accumulation of ice on a public sidewalk adjoining premises owned and controlled by the defendant. The evidence warranted a finding that the plaintiff was caused to fall by a patch of ice on the sidewalk and that the patch of ice was formed by the freezing of water which was discharged in a definite channel or "gully" on the sloping lawn of the defendant to an opening in the hedge whence it flowed over a curb or retaining wall to the sidewalk. On the liability aspect, the case is governed by Crafts v. McCobb, 303 Mass. 172, rather than McManus v. Muzyka, 329 Mass. 770. The defendant contends that there was no evidence of the receipt of the notice required by G. L. c. 84, Section 21. From the record it is clear that during the opening statement of plaintiff's counsel the statutory notice was produced, upon request, by the defendant's counsel, read by the plaintiff's counsel to the jury, and the defendant's counsel acquiesced in his adversary's statement that it was agreed that the notice had been received. We are satisfied, as the judge and plaintiff's counsel obviously were, that receipt of notice was admitted. Hence no evidence was necessary on this point. The case in principle is governed by Brocklesby v. Newton, 294 Mass. 41, 43. See Dalton v. Post Publishing Co. 328 Mass. 595, 599. The motion for a directed verdict was rightly denied.


343 Mass. 774

December 1, 1961

Exceptions overruled. Following a verdict for the plaintiff broker in an action of contract for a real estate broker's commission, the judge entered a verdict for the defendant owner under leave reserved. The plaintiff excepted. The facts are: Late in February or early in March, 1957, the defendant gave the plaintiff permission to list his house for sale at $24,500. No other price was ever mentioned. The plaintiff immediately notified one Fales to whom he had shown twenty or twenty-five other houses that the defendant's house was coming on the market. The plaintiff then informed the defendant that he had told Fales about the defendant's house. The defendant and the plaintiff, each with the knowledge of the other, advertised the house for sale. On May 10, 1957, the defendant sold the house to Fales for $21,000. The plaintiff had never shown the house to Fales. There was no error. Permission to list property for sale is merely an offer by the owner which gives the broker no right to compensation unless it ripens into a contract by fulfilment of its terms by the broker. The plaintiff never produced a customer within the terms of the offer. A finding of bad faith or that the plaintiff was the efficient cause

Page 775

of the sale was not warranted. See Dragone v. Dell'Isola, 332 Mass. 11, and case cited, and Kacavas v. Diamond, 303 Mass. 88, 92-93.