Middlesex. Contract. Writ in the Superior Court dated August 6, 1970. The action was tried before Mitchell, J. A motion for costs was heard by Fine, J.
Hale, C.j., Grant, & Armstrong, JJ.
Broker, Commission. Contract, With broker, Performance and breach. Evidence, Extrinsic affecting writing. Practice, Civil, Costs.
The opinion of the court was delivered by: Grant
In an action on a contract between a landowner and real estate brokers, by which the landowner agreed to compensate the brokers for their services in obtaining an option agreement only if, as, and when the option was exercised and title passed thereunder, but not otherwise, the brokers were not entitled to an instruction which would have permitted the jury to find for the brokers on the contract if they should find that the brokers had been the "efficient cause" of the eventual sale of the locus even though the sale was not made pursuant to the option agreement. [371-372]
In an action by real estate brokers seeking recovery under a compensation agreement for services provided a landowner in connection with the sale of a large tract of land, the Judge did not err in directing verdicts for the landowner on the quantum meruit counts of the complaint where the agreement expressly conditioned the landowner's performance upon the occurrence of events which never happened. [372-373]
In an action by real estate brokers seeking recovery under a compensation agreement for services provided a landowner in connection with the sale of a large tract of land, the Judge did not err in excluding testimony from an expert witness as to the proper interpretation of the contract where the language of the contract was clear and unambiguous and did not require or admit of extrinsic explanation. [373-374]
In an action for breach of a compensation agreement, the evidence did not require a finding that the defendant had waived the conditions of the agreement. [374-375]
In an action for breach of a compensation agreement, the evidence did not require a finding that the defendant had acted in bad faith to deprive the plaintiffs of their compensation. 
A Judge did not err in refusing to award a defendant as an item of taxable costs under G. L. c. 223, § 122, the expense of obtaining and maintaining a letter of credit which a surety company required as collateral security for a bond. [376-377]
The plaintiffs seek to recover from the defendants for services performed in connection with the sale of a large tract of land in Westwood (locus) owned originally by the defendants Apog and Talkowski as trustees of the Imperial Gardens Realty Trust and later by Apog individually. Counts 1 and 2 (brought by Creed) and 5 (brought by Egan, Diehl and Edward Diehl Associates, Inc. ) of the declaration (complaint) sought recovery pursuant to an express contract between the parties; counts 3 and 4 (brought by Creed) and 6 (brought by Egan, Diehl, and Associates) sought recovery in quantum meruit. All parties moved for directed verdicts at the close of the plaintiffs' evidence. The plaintiffs' motion was denied. The defendants' motion was allowed as to counts 3 and 4 but denied as to the remaining counts. The jury returned verdicts for the defendants on those counts. The plaintiffs have appealed from the ensuing judgments. The defendants have appealed from an order entered after the judgments denying in part their motion for costs.
We summarize the evidence most favorable to the plaintiffs. Creed is a licensed real estate broker; Diehl and Egan are both associated with the plaintiff Associates, a firm providing design, planning, site evaluation and related services; Apog is a real estate owner and developer. In 1967 the Lahey Clinic Foundation (Lahey), a group practice of approximately 100 physicians whose principal facilities were then located in Boston, was considering the purchase of property in a suburb of Boston on which to construct a hospital with outpatient facilities and physicians' offices. Creed learned of Lahey's possible interest and told Diehl, who promised to contact Creed if he found a possible site. A month later, in May of 1967, Diehl contacted Apog to ascertain whether he might be interested in selling the locus to Lahey. Apog was. Diehl informed Creed, and in June of 1967 Creed, with the permission of Apog, showed the locus to the president of Lahey, who indicated an interest in purchasing it.
However, Lahey desired that various studies be made to determine whether the locus would be appropriate for Lahey's purposes. Among other matters to be studied were problems of sewage disposal, the availability of utilities, vehicular access to the locus, and parking. Such studies were performed by Diehl, Egan, and Associates with the understanding that Apog would compensate them for their services. In addition, the locus was zoned for single family residential use, and, although a hospital could be built in such a zone under a special permit, Lahey desired certain changes in the Westwood zoning by-law before it might purchase the locus.
In October of 1968, although the zoning by-law had not yet been changed and Lahey was not yet convinced that the locus would be an appropriate site for its facilities, Lahey was sufficiently interested in the locus that it entered into an agreement with Apog and his cotrustee by which they gave Lahey an option to purchase the locus for a price of $1,200,000. Lahey paid the trustees $15,000 upon the execution of the agreement, which provided that by the payment of additional sums of $15,000 at six-month intervals Lahey could extend the life of the option for a maximum period of three years. *fn3 Contemporaneously with that agreement Apog entered into a separate written agreement with the plaintiffs (one which the parties agree superseded all previous agreements between ...