Tristam’s Landing, Inc. v. Wait

Facts

Plaintiffs are real estate brokers doing business in Nantucket, Massachusetts. The Defendant owned real estate, which she desired to sell. The Plaintiffs discovered Defendant’s desire to sell and telephoned Defendant asking for authority to show the property. The Defendant orally gave permission to Plaintiffs to show the property, but not exclusively. The price for the property was $110,000.00. The Defendant knew that the customary commission on the island of Nantucket was 5% of the purchase price. Plaintiffs found a prospective buyer, who executed a written offer to purchase for $100,000, which was conveyed to Defendant. The Defendant’s husband wrote to Plaintiffs that a counter-offer of $105,000.00 should be made with a proposed closing date of October 1, 1973. The prospective buyer orally agreed, and a purchase and sale agreement was drawn up by Plaintiffs. The agreement was executed by the prospective buyer and was returned with a check for $10,500.00, which was a ten perc ent down payment. The agreement was presented by Plaintiffs to Defendant who signed the agreement after discussing it with counsel and accepted the down payment. The Defendant appeared at the closing, but the prospective buyer did not and thereafter refused to go through with the purchase. Defendant has not taken any action to enforce the agreement or recover damages, although Defendant has retained the down payment. Plaintiffs then presented Defendant with a bill for $5,250.00, which was 5% of the purchase price. Defendant refused to pay, stating that the failure of the deal means that no commission had been earned. The lower court found for the Plaintiff and Defendant appealed.