
    Frederick H. Viaux & another vs. Old South Society in Boston.
    Suffolk.
    March 17, 1881; March 9. —
    May 13, 1882.
    The defendant employed the plaintiff as a real-estate broker to sell his estate. The plaintiff rendered some services in attempting to sell the estate to P., who at one time thought of buying it, but abandoned the idea. A subscription was raised for the purpose of preserving the building standing on the estate as an historical monument. A committee of the subscribers employed C. as their’ agent, and he entered into negotiations for the property which resulted in an agreement by the defendant to sell it. Neither the plaintiff nor P. had any connection with these negotiations. The subscriptions were not sufficient to pay the price agreed upon, and it was necessary to borrow a large sum of money upon a mortgage of the estate. The lender required that the mortgage note should be signed by some known responsible person, and thereupon the committee induced P. to take the conveyance to himself and to sign the mortgage and’ note. Held, that P. was not a purchaser of the estate, even if the information furnished him by the plaintiff induced him to take the position he did in regard to the property, within the meaning of a usage that a broker, whose services are accepted by the seller, and who introduces the seller to a purchaser, is entitled to a commission upon the amount for which the estate is sold, if ultimately purchased by the person so introduced, whether the sale is finally effected by the same broker or by another person.
    Contract, by real-estate brokers doing business in Boston, to recover a commission on $400,000, the price received by the defendant, a religious corporation, for the land and meetinghouse thereon, formerly owned by it, at the corner of Milk Street and Washington Street in Boston. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions, in substance as follows:
    There was evidence that the plaintiffs were employed as brokers by the defendant to effect a sale of said property; that they were the first to call the attention of Royal M. Pulsifer to the property, and introduced him to the defendant as a customer ; and that thereupon the plaintiffs had many interviews and some correspondence with Pulsifer and the defendant, and informed Pulsifer of the value, rental capacity and advantages of the property, and endeavored to induce him to make the pur.chase. By the terms of sale given to the plaintiffs by the defendant, the buildings were to be removed and the land sold.
    The following deeds, all dated October 11, 1876, were put ‘in evidence:
    1. A deed from the defendant to Royal M. Pulsifer of the land, describing it by metes and bounds, by the terms of which the grantee was to pay the taxes of that year, the grantor reserving the right to enter upon the premises and to take down the church edifice thereon, in case of any breach of the indenture immediately following.
    2. An indenture between the same parties, whereby the defendant conveyed to Pulsifer the meeting-house on the land conveyed by the deed, on the “ express condition that said building shall not at any time during the period of thirty years from the date of this indenture, be used for any business or commercial purpose, and shall be used during said period for historical and memorial purposes only, and that it shall not at any time during said period be used for any purpose whatever on Sunday, except so far as necessary for the care and preservation of said building and contents.”
    3. A mortgage deed, of the entire estate, from Pulsifer to. the New England Mutual Life Insurance Company, to secure the payment of Pulsifer’s promissory note in the sum of $225,000, payable in three years from date, with interest at the rate of six per cent per annum, payable semiannually. The deed contained covenants of seisin and warranty, an-agreement by Pulsifer to pay all taxes and assessments levied on the estate, and the usual power of sale.
    
      4. A conveyance in mortgage, subject to the above mortgage, from Pulsifer to Henry Lee, trustee, the condition of which was the payment of 175,000, without interest, in two years, if the estate, subject to the prior mortgage, should “ be sufficient therefor, but not otherwise.”
    5. A declaration of trust by Pulsifer, which, after reciting the foregoing deeds, proceeded as follows : “ I do hereby declare, that I hold said land and building subject to said mortgages in trust: To permit Henry P. Kidder and Henry Lee, both of Boston, in the county of Suffolk and Commonwealth of Massachusetts, and the survivor of them and their or his assigns, to occupy and use said estate and building for such purposes as he or they may elect or direct in writing, consistently with the terms of the conveyance of said estate and building to me, during such time as they or their assigns shall pay the interest upon said first-named mortgage debt and taxes, and that I will on the payment of said mortgage debt, or upon my being indemnified to my satisfaction against loss by reason of my having incurred said mortgage debt, convey said property to said Kidder and Lee, the survivor of them and his or their assigns, or to such person or persons or corporation as they or the survivor of them or their assigns may designate in writing, by a quitclaim deed, with covenants against incumbrances made or suffered by me except as aforesaid, and with release of dower. If the principal amount of said first-named mortgage debt is not paid on or before maturity, according to the terms of said mortgage, or if I am not indemnified and saved harmless therefrom to my satisfaction as aforesaid, on or before its maturity, or if the interest due thereupon shall at any time be in arrears for more than the period of five months, I reserve the right to sell such mortgaged estate and property at my discretion at public auction, after advertising said sale for at least thirty days in two newspapers published in said Boston; and in case of such sale, after applying so much of the proceeds thereof as shall be necessary to pay said mortgage debt, or so much thereof as shall then remain unpaid, with interest, together with all the needful and proper costs and expenses of such sale, to pay over the balance of such proceeds to said Kidder and Lee, or the survivor of them or his or their assigns.”
    
      It was proved that there exists in Boston a general and well-established usage that a broker, whose services are accepted by the seller, and who introduces the seller to an ultimate purchaser, is entitled to a commission upon the amount for which the estate is sold, if ultimately purchased by the person so introduced, whether the sale is finally effected by the same broker, or by another person.
    It was also in evidence that, in June 1876, the defendant informed the plaintiff, Viaux, that it was decided that the estate should be sold by public auction; that Viaux repeated this to Pulsifer, and Pulsifer then said to him that, if the estate was going to be sold by auction, he would prefer to take his chances at the auction rather than buy at private sale, and Viaux had no further communication with Pulsifer until after the deed was made to him; that on June 13, 1876, the building was sold by public auction to one Roberts, on condition that the same should be removed in thirty days ; that subsequently Roberts assigned his interest to other parties, who reassigned to the defendant,before the indenture of October 11, 1876, was executed; and that the land was never sold by auction.
    The defendant offered evidence tending to show that, immediately after the sale to Roberts, at a public meeting held in the meeting-house, a committee was appointed for the purpose of raising funds to preserve the building for an historical monument, and, after various negotiations with the defendant and delays, Henry Lee was appointed treasurer of the preservation committee, and he thereupon employed Charles U. Cotting to negotiate for the purchase of the land and building for an historical monument, in the course of which certain letters were written by Cotting, as agent, to the chairman of the standing committee of the defendant, which resulted in the defendant offering, on September 15, 1876, to sell the estate, on certain terms and conditions, which offer was accepted on September 19, 1876; that at the time of Cotting’s first letter, August 23, 1876, the committee had, or were promised, $175,000 towards the price demanded for the property; and that after the refusal, on August 24, 1876, of the defendant to sell except for cash, they applied, through Cotting, to the New England Mutual Life Insurance Company, for a loan of $225,000, and the company agreed to lend this amount on the note of some person satisfactory to it, secured by a first mortgage of the property j that, at the request of Robert R. Bishop, who was acting with Lee on behalf of the committee, Pulsifer agreed to sign said note, and the company accepted him as satisfactory; that, on the day of the date of the several deeds, representatives of the preservation committee and the defendant met Pulsifer at the office of the company, Pulsifer signed the mortgage note, the papers in evidence were executed by the several parties thereto, and the $225,000, lent by the company, added to the $175,000 from the preservation committee, were paid over, in the presence of all the parties, to the defendant, and that since the execution of the papers Pulsifer had had nothing to do with the management of the property, excepting in signing leases to tenants of certain parts of it; that all the arrangements for raising the money under the mortgage were made before Pulsifer was requested to act as he did; that Pulsifer, personally, had nothing to do with Cotting, or the contract for the sale of the property, except as stated; and that the property was ample security for an amount of $225,000, and the prospect of personal liability on the part of any signer of the mortgage note was remote.
    The defendant contended that Cotting had acted as the agent of the preservation committee, which, therefore, had bargained for and purchased the property; and that Pulsifer was a trustee for the committee’s benefit, and not the purchaser of the property.
    The plaintiffs admitted that they had no connection with the preservation committee or Cotting, but introduced evidence tending to show that after the defendant had, on August 24, 1876, refused to consider anything but a cash offer for the property, the preservation committee and Cotting had unsuccessfully applied to the Massachusetts Hospital Life Insurance Company and the Hew England Mutual Life Insurance Company for a loan of $225,000 on the security of the property itself, without personal liability on the part of anybody; that in order to raise the price and accomplish their object it then became necessary to have somebody sign the mortgage note; that the names of several persons were talked over and considered as likely to consent so to do, and that Cotting, being one of the persons who was asked to sign it before Pulsifer was, refused to do so, alleging as a reason that he was agent for so many estates; and that, in fact, the money was raised by the preservation committee, and the contract price was obtained by Pulsifer’s signing the mortgage note and borrowing the money of the company, and by Pulsifer’s taking the position which he did with regard to the property at the time of the execution of the papers.
    Pulsifer, a witness for the plaintiffs, in answer to the question whether or not the statement made to him and information given him by the plaintiff Viaux, and the conversations had with him by Viaux, were the cause which induced him to act as he did with reference to the property, answered: “ Indirectly, yes; that is, by my interviews with Viaux I had become familiar with the property as to its present value, as I thought, and possibly its prospective value.” On cross-examination, Pulsifer testified, that when the property was first presented to him he was looking for a site for the office of the Boston Herald, a newspaper ; that the site where that office now is had been purchased by him several years before, and that he determined to build there in the first part of the winter of 1876-77 ; that he never made any bargain for or purchased the Old South Church property, nor furnished any money for paying for it except a subscription made to the preservation committee; that he had the papers made to him at the request of Bishop, which request and his assent were in August 1876; that Bishop must have told him how much money was going to be paid down by the committee, because he knew, when he agreed to give the mortgage, what the amount of it was to be; that Bishop requested him to take the property, and told him what he wanted him to do, and wanted him to sign a note and mortgage for $225,000; that he thought it was a safe thing to do; that the papers were all signed and delivered at one time; that the $175,000 paid down by the committee was in the shape of certificates of deposit issued by the Commonwealth Bank and another bank, and came through Lee, Higginson and Company; that he had known the value of the Old South Church property for several years, and that he thought he should have known on his own judgment that the property was worth more than $225,000 ; that he had nothing to do with the negotiating for, or borrowing of, the $225,000 except giving the note; that since' he took the deed he had had nothing to do with the property except to sign several leases, which he had done at the request of Lee or Bishop, and had paid nothing towards interest or taxes, or care or management of the estate; and that when he took the deed he had not, nor has he had since, any expectation of becoming the owner of the property. On re-direct examination, he testified that he expected that Lee and Bishop or the preservation committee would some day come to him, indemnify him on his mortgage, pay him all up, and ask him for a quitclaim deed; and that when they did so, and all the conditions in the agreement with him were fulfilled, he would give them a quitclaim deed, because he had agreed to do so; that the $225,000 was lent to him by the New England Mutual Life Insurance Company on his mortgage note, and that he was present when the- $225,000 was paid over by the company, and this and the $175,000 was paid the defendant, although he could not remember whether the checks actually went into his hands or not.
    The plaintiffs further put in evidence that Bishop, in requesting Pulsifer to act as he did, had talked with him only twice about the matter, for not longer than from five to ten minutes each time, and on both occasions, incidentally, at meetings of a committee of the government of the city of Newton, of which they were both members, and that on the day after the latter of these conversations, August 3, 1876, Pulsifer, by telegram to Bishop, acceded to his request.
    The plaintiffs requested the judge to instruct the jury that it was a question of fact for them whether the efforts of Viaux were a material part of the cause that induced Pulsifer to take the position he did in regard to the property, and whether it was through Pulsifer’s taking that position that the sale was effected; and that whatever Pulsifer’s position with reference to the property and parties was, whether he was purchaser, trustee, or what not, if the jury found that the efforts of the plaintiffs were material in inducing a sale, the plaintiffs were entitled to recover.
    The judge refused to give these instructions; but ruled that the only question for the jury was whether or not Pulsifer was a purchaser of the property, in which case the plaintiffs would be entitled to recover under the usage, and, otherwise, not; that the purchaser is one by or on behalf of whom the bargain or contract of sale is made; that it was for the jury to say whether Cotting was acting for Pulsifer or for others ; and that if dotting was not acting for Pulsifer in his negotiations with the defendant, and when he wrote the letter of September 19, Pulsifer was not the purchaser, unless he afterwards became so; that although Pulsifer took the deed, yet if it was proved that he took it merely as a trustee, at the request and for the benefit of other parties who had arranged for the purchase from the defendant, assuming no control or management of the property himself, he would not be a purchaser; that it appeared that Pulsifer had an interest in the property; that he took it, or looked to it, to secure him against a liability of $225,000, and that he would not be a purchaser if he merely retained an interest in the property as security for money which he had advanced at the request of other parties who had bargained for it; nor would he be a purchaser if he coupled the holding of the property in trust for the benefit and under the control of such other parties with the holding of the same as security for money advanced, or for a liability incurred by him at the request and for the benefit of such other parties; and that, in order to constitute Pulsifer a purchaser, he must have been one who made the bargain, or who was concerned in it, or who advanced money on his own account for his own benefit or on his own responsibility.
    The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.
    
      C. H. Hill & W. S. Macfarlane, for the plaintiffs.
    1. The ruling requested should have been given, and the instructions given were erroneous. Whether Pulsifer was the purchaser is a question of law depending on the construction of the several papers which passed between the parties. These papers show that Pulsifer is in law the owner of the property. He has a large insurable interest therein; he is responsible as owner for taxes and betterments, and is liable for torts growing out of the condition of the building. The mortgagee is clearly not the owner; and Kidder and Lee are merely cestuis que trust of an equity of redemption, with the right to have the estate conveyed to them when Pulsifer is fully indemnified.
    
      2. It is immaterial whether Pulsifer purchased for his own benefit or for a cestui que trust. If the intervention of the plaintiffs was the efficient cause of his consenting to accept a conveyance of the property, and to advance the money necessary to complete the purchase, the plaintiffs have performed their part of the contract, and have found a purchaser for the property. If a purchaser, introduced by a broker to a vendor, at first intended to buy the estate for his own use, it would be no defence to a suit for the commission that he finally bought it for a cestui que trust; and, so long as the estate is sold, the vendor has no interest as to the capacity in which the purchaser takes it.
    Under the usage proved at the trial, and which is the same as exists generally in this country and in England, if the plaintiffs were the efficient cause of Pulsifer’s purchase of the property, they are entitled to recover; and the fact that the sale was ultimately completed without their assistance does not affect their right to their commission. Bornstein v. Lans, 104 Mass. 214. Loud v. Hall, 106 Mass. 404. Rice v. Mayo, 107 Mass. 550. Pope v. Beals, 108 Mass. 561. Chapin v. Bridges, 116 Mass. 105. Lloyd v. Matthews, 51 N. Y. 124. Sussdorff v. Schmidt, 55 N. Y. 319. Murray v. Currie, 7 Car. & P. 584. Wilkinson v. Martin, 8 Car. & P. 1. Cunard v. Van Oppen, 1 F. & P. 716. Mansell v. Clements, L. R. 9 C. P. 139. Green v. Bartlett, 14 C. B. (N. S.) 681. Rimmer v. Knowles, 30 L. T. (N. S.) 496; S. C. 22 W. R. 574. Bayley v. Chadwick, 39 L. T. (N. S.) 429. Wilkinson v. Alston, 48 L. J. (N. S.) Q. B. 733; S. C. 41 L. T. (N. S.) 394.
    The evidence in the case is very strong that the sale was directly owing to the intervention of the plaintiffs. Pulsifer testified that, from his interviews with Viaux, he had become familiar with the property as to its present value, and possibly its prospective value ; and that, after two accidental interviews with one of the committee, not more than five or ten minutes long, he consented to advance the requisite money, which others, who were interested in the preservation of the building, and who must have had a general acquaintance with it, had refused to do. This therefore brings the case within the usage proved, and within the principle of the cases cited above.
    
      N. Morse & L. M. Child, for the defendant.
   Morton, C. J.

The evidence ,tended to show that the defendant employed the plaintiffs as real-estate brokers to effect a sale of its property at the corner of Washington Street and Milk Street in Boston. There was no evidence of any contract by the defendant that the plaintiffs should have the exclusive right to sell the property, or that they should be entitled to any commissions except upon a sale effected by them. The plaintiffs relied upon a usage that a broker, whose services are accepted by the seller, and who introduces the seller to an ultimate purchaser, is entitled to a commission upon the amount for which the estate is sold, if ultimately purchased by the person so introduced, whether or not the sale is finally effected by the same broker or other parties. Under the contract implied by the employment of a person as a broker, as modified by this usage, the broker becomes entitled to his commissions when he has found a purchaser and has brought the parties together, if a sale is made to the purchaser. But he is not entitled to recover, unless he finds and introduces a person who becomes a purchaser. Tombs v. Alexander, 101 Mass. 255. Loud v. Hall, 106 Mass. 404.

It appeared in this case that the plaintiffs rendered some services as brokers in attempting to sell the property to Royal M. Pulsifer, which would have entitled them to their commissions if Pulsifer had purchased the estate. At the trial, the court so ruled in favor of the plaintiffs, and left, it to the jury, under instructions as to what would constitute a purchaser, which are not open to exception, to determine whether Pulsifer was a purchaser of the property. The finding of the jury to the effect that he was not the purchaser is conclusive against the plaintiffs’ right to recover, unless the undisputed facts show, as matter of law, that he was a purchaser. We are of opinion that the facts do not show this. The evidence clearly shows that Pulsifer at one time thought of buying the estate for the purposes of his business, but that he abandoned this idea. A subscription was raised for the purpose of preserving the Old South Church standing on the estate as an historical monument. Henry Lee and others, a committee of the subscribers, employed one Cot-ting as their agent, and he entered into negotiations for the property which resulted in an agreement by the defendant to sell the property. Neither the plaintiffs nor Pulsifer had any connection with these negotiations.

The subscriptions were not sufficient to pay the price agreed upon, and it was necessary to borrow a large sum of money upon a mortgage of the estate. The lender required that the mortgage note should be signed by some known responsible person, and thereupon the committee induced Pulsifer to take the conveyance to himself, and to sign the mortgage and note. He had nothing to do with the purchase. He had no interest in the estate. He consented to take the deed and execute the mortgage and note as a mere trustee or conduit to carry out the purposes of the committee, who were the real purchasers. There is no more reason for calling him the purchaser, within the meaning of the usage relied upon by the plaintiffs, than there would be if he had directly lent the money and taken a mortgage to himself. The facts conclusively show that he was not such purchaser.

The view we have taken makes it clear that the court rightly refused the plaintiffs’ request for instructions. Under their contract they could only recover upon proof that they found and introduced the person who became the ultimate purchaser. Even if the information furnished by the plaintiffs to Pulsifer induced him to take the position he did in regard to the property, and if thus the efforts of the plaintiffs were material in inducing the sale to the committee, the plaintiffs cannot recover, because such are not the terms of their contract. The defendant never promised to pay them commissions except upon the condition that they procured a purchaser, which they failed to do. Exceptions overruled.  