Samuel P. Philbrick v. Minnie Chase

The Court correctly charged that the legal duty of the plaintiff consisted in being the efficient cause of procuring ""a customer willing and able to buy upon the terms proposed by the owner."" ""His undertaking was to procure a customer able and willing to buy.' Wilson v. Atwood, 81 N.H. 61, 65."" Russo v. Slawsby, 84 N.H. 89, 91. See also, Toohey v. Davis, 85 N.H. 80. In Russo v. Slawsby, supra, 90, it was stated that the requirement of readiness was sufficiently covered by those of ability and willingness and need not be separately mentioned. If an agent is the effective cause of a specific result, he is entitled to the agreed compensation for such accomplishment. The defendant excepted to the instruction that she and Wilfred Savard entered into a binding agreement of sale and purchase on August 12, 1946, on the ground that the Savards did not sign any agreement but merely went into possession and made certain payments on account. Without discussing whether or not the buyers were bound to take the property, the error, if any, was harmless. It was not part of the undertaking of the plaintiff that he see that a legal contract was made between buyer and seller, but merely to procure a customer able and willing to purchase. ""It is our Conclusion that the agency agreement merely authorized Toohey to secure a purchaser who was willing and able to buy (Russo v. Slawsby, supra) and did not empower him to bind the defendant by a sale agreement."" Toohey v. Davis, supra, 85. Furthermore, the defendant is not prejudiced by the lack of a written agreement signed by the Savards. She concedes that they are in possession and have paid $3,200 on account of the price of $13,000 and that the only reason why the deal has not been completed is the fact of the attachment in the present suit. If it should appear before the consummation of the transaction that the Savards have not the requisite willingness and financial ability to go through with it, evidence of this may be brought to the attention of the Superior Court for such action as Justice may require. At the trial there was abundant evidence of both ability and willingness.