Samuel Nichols v. Francis J. Molway

If an exclusive brokerage engagement is to be binding, it must be a bilateral contract, i.e., it must, through an exchange of promises, require performance by broker and seller. Bump v. Robbins, 24 Mass. App. Ct. 296, 304-305 (1987), and cases cited. The question presented is whether, within the corners of an agreement signed by the parties, the broker in the instant case made an enforceable promise which bound it to expend efforts on the property owner's behalf. We decide that it did and affirm the judgment entered below. Exclusive broker arrangements, i.e., an agreement that during a specified time period the designated broker will be the sole agent authorized to find a buyer, are commonly made and thought by property owners to be likely to induce a maximum effort by the broker. See Mendler, Massachusetts Conveyancers' Handbook § 2:1 (3d ed. 1984). Cf. Julius Tofias & Co. v. John B. Stetson Co., 19 Mass. App. Ct. 392, 396-397 (1985). We recently had occasion, in Bump v. Robbins, 24 Mass. App. Ct. at 303-305, to review the authorities concerning exclusive broker agreements. Not only is it necessary to express unambiguously the intent to grant an exclusive agency, id. at 304, but the broker must be more than a passive recipient of the grant of exclusive agency; the broker must agree to do something, such as advertising the property and making diligent effort to find a buyer on the seller's terms. An example of a binding exclusive agency agreement appears in Julius Tofias & Co. v. John B. Stetson Co., 19 Mass. App. Ct. 392 n.1. See also the more carefully considered text which appears in Mendler, Massachusetts Conveyancers' Handbook at 490. Compare Bartlett v. Keith, 325 Mass. 265 (1950), in which the agreement said merely: