
    William J. Coughlin vs. Hiram G. Randall.
    Suffolk.
    March 18, 1891.
    May 19, 1891.
    Present: Field, C. J., C. Allen, Holmes, Morton, & Lathrop, JJ.
    Contract— Sale of Real Estate — Evidence.
    
    In an action to recover a commission on a sale of real estáte, the first count of the declaration alleged that the defendant employed the plaintiff to sell the same, and agreed to pay him a certain commission on a sum named if he should sell the estate for that sum, or an equivalent thereof; the second count was on an account annexed. At the trial the plaintiff’s evidence showed that he sold the estate for a fair equivalent, and that the defendant agreed to pay him the commission on such sum if the estate was either sold or exchanged. This was contradicted by the defendant, who, after testifying without objection that he received no money from the sale, offered to show what was actually received in exchange for the estate, and that it was much less than the sum named in the declaration. Held, that this offer of evidence was improperly excluded.
   Morton, J.

This is an action to recover a commission on a sale of real estate. The first count in the plaintiff’s declaration alleged that the defendant employed him to sell certain real estate belonging to him, and agreed to pay him a commission of two and one half per cent on the sum of $12,000, if he should sell the estate for that sum, or an equivalent thereto. At the trial, the plaintiff offered evidence tending to show that he sold the estate of the defendant for a fair equivalent, and that the defendant agreed to pay him a commission of two and one half per cent on $12,000, if the property was either sold or exchanged. This evidence was contradicted by the defendant, who testified, without objection, that he received no money from the sale of his estate, and offered to show what was actually received in exchange for the estate alleged to have been sold by the plaintiff, and that it was much less than twelve thousand dollars. The evidence was, upon the plaintiff’s objection, excluded by the court, and the defendant excepted. We think the defendant should have been allowed to introduce it. The contract set out by the plaintiff imported that the defendant was either to have $12,000 in money, or property of a value fairly equal to that amount, in case an exchange was effected instead of a sale for money. It was only in case the defendant received $12,000 in money, or property of a value fairly equivalent thereto, that he was to pay the two and one half per cent commission on $12,000. The defendant should, therefore, have been allowed to introduce the testimony offered by him, and tending to show that the property which he received was not fairly equivalent in value to $12,000.

S. Bancroft, for the defendant.

W. N. Osgood, for the plaintiff.

The testimony would also be admissible if the plaintiff should not be entitled to recover on the specified contract set out in the first count, but should be entitled to recover under the second count, which was on an account annexed, a reasonable compensation for any services which he actually rendered in effecting the sale and exchange for the defendant. Dexter v. Campbell, 137 Mass. 198. Exceptions sustained.  