The contract having been oral, its terms are to be ascertained from the evidence. The trial judge would have been warranted in finding that the defendant authorized the plaintiff to sell a parcel of its real property for a fixed price, reserving the right “to deal with any one, broker or other person, who brings us an offer.” Having found a purchaser able and willing to buy, the plaintiff informed the defendant and it, after ascertaining the amount of the commission, accepted the offer. The plaintiff’s president, accompanied by the proposed purchaser, thereupon went to the defendant’s place of business where an agreement under seal for the sale and purchase of the property was prepared and executed, which the parties to the action agree was binding upon vendor and purchaser. But, the purchaser upon tender of the deed having refused performance, the defendant contends that the plaintiff cannot recover, because no commission was earned unless the sale was consummated and the title passed.
The rights of the plaintiff, however, are to be determined by the contract of employment. It contains no stipulation that payment of a commission depended upon the making of an enforceable agreement between the defendant and the customer. Nor is it susceptible of such construction by implication. Doubtless such an agreement could have been made or the commission conditioned as payable only from the proceeds of the sale as in Munroe v. *374Taylor, 191 Mass. 483, 485. It moreover is undisputed that without attempting enforcement and without notice to the plaintiff the contract of sale was rescinded by mutual consent. The defendant having voluntarily abandoned a binding agreement cannot treat it as still in force for the purpose of avoiding its liability to the plaintiff.
The defendant’s first and ninth requests were properly refused, and the general finding for the plaintiff, after allowance of the set-off, should not be disturbed. Fitzpatrick v. Gilson, 176 Mass. 477. Carnes v. Howard, 180 Mass. 569, 572. Goodnough v. Kinney, 205 Mass. 203.
Order dismissing report affirmed.