#### Harry Isenberg *vs.*Arthur Williams.

Suffolk.

November 13, 1939.

May 28, 1940.

Present: Donahue, Ltjmmus, Dolan, & Ronan, *JJ.*

*Broker,*Commission. *Contract,*What constitutes, With agent, Validity. *Agency,*Agent’s liability to third person. *Lord’s Day.*

On evidence that a defendant, not being in fact the owner of certain real estate, requested a real estate broker to procure a customer for it, leading the broker to believe justifiably that he was acting for himself, and later purchased the property at a foreclosure sale before conveying it to a customer produced by the broker, it could be found that there was a contract of hire between the broker and the defendant personally.

The mere fact that a day when a broker was requested to procure a customer for real estate and was promised a commission for so doing was a Lord’s Day did not make illegal the contract completed between the parties when the broker produced a customer on a secular day.

Contract. Writ in the District Court of Chelsea dated July 18, 1938.

Upon removal to the Superior Court, there was a finding for the plaintiff in the sum of $205 by *Brogna,*J. The defendant alleged exceptions.

*A. Williams, pro se.*

*I. E. Newman, (M. J. Wheeler*with him,) for the plaintiff.

*87Donahue, J.

The plaintiff brought this action to recover a commission for procuring, at the request of the defendant, a customer for a parcel of real estate. A judge of the Superior Court sitting without a jury found for the plaintiff. He denied the defendant’s requests for rulings to the effect that the evidence did not warrant a finding that there was a contract of hire between the plaintiff and the defendant personally, and that the evidence did not warrant a finding for the plaintiff.

The judge made the following findings: One Weiner and one Riman, doing business as the Dorchester Lumber Company, were the owners of two adjacent parcels of land in Revere with a dwelling house on each parcel, standing in the name of Riman. A savings bank held one mortgage covering both properties, on which there was due $7,300. It had started foreclosure proceedings by publication in the usual way. The plaintiff was informed that the Dorchester Lumber Company was the owner of the properties and telephoned to the company that he had a prospective buyer. As a result, the defendant telephoned to the plaintiff and made an appointment. The defendant with Weiner went to see the plaintiff. The “defendant without disclosing that he was acting as attorney and that he had no financial interest in the Dorchester Lumber Company led the plaintiff to believe that he was the Dorchester Lumber Company and employed the plaintiff to obtain a purchaser for either or both properties before the foreclosure, it being understood that the plaintiff was to receive the usual commission,” which the judge found to be four per cent of the sale price. A few days later the plaintiff introduced to the defendant a prospective buyer with whom negotiations were carried on for a short time, without result. About ten days before the date set for the foreclosure sale, the plaintiff introduced to the defendant as a prospective buyer one Vilker and, after a few conferences between Vilker and the defendant in which the plaintiff participated, negotiations between the defendant and Vilker were continued until a few days before the foreclosure sale, without any definite conclusion being reached, but the negotiations were not *88definitely suspended or abandoned. Vilker and the defendant, without prearrangement, attended the foreclosure sale. Before the sale began an agreement was made by Vilker and the defendant to the effect that the latter was to purchase the properties at the sale and that Vilker would thereafter purchase one of the parcels from the defendant for $5,000, the price that the defendant had first asked for that parcel at the first or second conference with Vilker which the plaintiff attended. The defendant bid $7,550 for the two parcels. This was the highest of several bids and the defendant became the purchaser, Vilker furnishing the deposit required by the terms of the sale. Later the defendant sold to Vilker for $5,000 the house and land that Vilker had agreed to buy. There was evidence to support the findings made by the judge.

The fact that the defendant ultimately made a sale of the property to a customer introduced to him by the plaintiff is not in dispute. The plaintiff in order to recover in this action was bound to show that the defendant employed him as a broker and that he did what he was hired to do.

At the time of the alleged hiring the equity in the real estate was in fact owned by Weiner and Riman. It is contended by the defendant that, if any contract of employment of the plaintiff as broker was made, it was a contract between the owners and the plaintiff. The fact that at the time of the hiring the defendant did not own the property was a circumstance to be considered in determining whether he in fact personally employed the plaintiff as a broker. But, one not owning property may hire a broker to sell it and thereby render himself liable for a commission *(Johnstone*v. *Cochrane,*231 Mass. 472, 477) even though he does not personally gain an advantage from the efforts of the broker who produced a customer. *Monk*v. *Parker,*180 Mass. 246, 248. In the last cited case it is said: “If the broker is ignorant what the defendant’s relation to the land is, and is asked to find a purchaser for the land, and does find one, who is willing to buy on terms satisfactory to the defendant, his commission is earned, even if the defendant does not then own the land *89and afterwards is unsuccessful in buying it, or if for any other reason he cannot avail himself of the offer procured by the broker.” See also *Buono*v. *Cody,*251 Mass. 286, 291. The fact in the present case that the defendant finally purchased the property for himself before the sale to the plaintiff’s customer does not affect the application of this rule.

A conclusion was warranted from the evidence that the defendant purported to act as principal and that the plaintiff was justified in believing that the defendant was so acting. If the plaintiff performed what he was hired to do the defendant could be found liable for the amount of the commission agreed upon even though the defendant was in fact acting as an agent and not as a principal. *Libby*v. *Smith,*293 Mass. 465, 468. *Buono*v. *Cody,*251 Mass. 286, 291. *O’Neill*v. *Reardon,*238 Mass. 120, 123.

The fact that the day when the parties first met and discussed the matter of a sale of the property was Sunday, did not, as the defendant contends, make the undertaking of the defendant to pay a commission to the plaintiff on the production of a customer illegal. Illegality of the agreement was not set up in the defendant’s answer, *Smith*v. *Miles,*296 Mass. 126, 128, and furthermore, what was said on the Sunday in question amounted only to an offer by the defendant and a contract did not arise until the plaintiff produced a customer who was ready, able and willing to purchase the property, which event does not appear to have occurred on a Sunday. *Maher*v. *Haycock,*301 Mass. 594, 596.

The bill of exceptions includes an exception by the defendant to the denial of his motion to nonsuit the plaintiff, filed after the trial and a finding for the plaintiff, during a hearing to settle the form of the bill of exceptions. Such a motion has no standing. 1 . ,

*Exceptions overruled.*

1

**The bill of exceptions contained the following: “. . . during hearing on bill of exceptions, the defendant presented a motion to the trial justice to nonsuit the plaintiff, reading as follows: ‘Now comes the defendant and moves that the plaintiff be nonsuited for failure to file to the defendant’s interrogatories answers thereto that were his own and that were properly-sworn to . . . The motion for nonsuit was denied and exception thereto duly taken by the defendant.” — Reporter.