The plaintiff was generally employed to find a customer ready, able and willing to buy the defendant’s lease of a garage, and if he succeeded in making a sale satisfactory to the seller his commission was to be ten per cent of the purchase price. The essential evidence of the parties covering their subsequent dealings is irreconcilable. But the jury who were to determine the facts could find on the plaintiff’s testimony, that in response to his advertisement one Ehrlich offered $4,500 on July 27, 1919, which the defendant upon notice of the offer declined, “saying plaintiff must get $500 more,” and the plaintiff having replied, “Well, this man wants it, he will pay $500 more,” the defendant said, “if this man would pay $500 more he would hold it open for two or three days.” The plaintiff had already received a deposit of $500 from Ehrlich, who finally agreed on July 29, 1919, to pay $5,000 for the property. During *35the forenoon of the next day the plaintiff telephoned the defendant, "that he had sold the place for $5,000.” The defendant exclaimed,"Have you really sold the place?” The plaintiff said, “Yes, we have sold it and the man has signed an agreement agreeing to pay $5,000 and I got a $500 deposit.” The defendant answered, “I am afraid you are too late but I will be up to see you about four o’clock,” when it appeared that he had “signed an agreement with another man to take this garage.” The defendant thereupon consulted counsel and endeavored to have the sale he claimed to have made to one Bell for $4,000 abrogated, but his efforts having proved unavailing he declined to pay the plaintiff a commission, on the ground, that the plaintiff’s agency was not exclusive and no commission had been earned. It further could be found that Ehrlich was not only ready and willing, but able to buy, and had agreed to purchase at the price named by the defendant. Brilliant v. Samelas, 221 Mass. 302, 303.
The presiding judge, because of this aspect of the evidence, rightly declined to order a verdict for the defendant, or to rule except so far as covered by the instructions, that “If the defendant, prior to the plaintiff’s putting the prospective purchaser and the defendant into communication with one another, in good faith sold the business to another customer, the plaintiff is not entitled to recover,” or that “In order for the plaintiff to recover the burden is upon him to prove that he obtained a customer who was ready, able and willing to meet the terms offered by the defendant prior to the sale of the business to another,” or, that "One giving a broker authority to sell his property upon terms stated, but not expressly agreeing that such broker shall have the exclusive right to sell retains the right to effect the sale personally or through another broker, and the owner may enter into an agreement to sell which will be effectual at any time before he has actual notice that an agreement has been effected by the broker.” The employment could have been terminated by the defendant withdrawing the property when he was informed of Ehrlich’s offer of $4,500, or as the judge told the jury, it could have been revoked by a statement by the defendant that he proposed to sell “to somebody else tomorrow.” Cadigan v. Crabtree, 186 Mass. 7, 12. Kimball v. Hayes, 199 Mass. 516, 520. The negotiations, if any, which led to the sale by the defendant were *36culminated on his evidence July 28. But if the jury believed the evidence of the owner of the estate where the garage was located, she negotiated the sale to Bell, “The matter was settled around the last of July.” The plaintiff who was ignorant of these transactions was not discharged however until after the sale to. Ehrlich had been consummated. It is settled that under such conditions the defendant’s voluntary disability of performance either before or after he had unreservedly and expressly authorized the sale to a customer procured by the plaintiff cannot defeat the plaintiff’s right of recovery. Fitzpatrick v. Gilson, 176 Mass. 477, 478, 479. Carnes v. Howard, 180 Mass. 569. Brilliant v. Samelas, 221 Mass. 302, 303. Wheeler v. Lawler, 222 Mass. 210. Zilli v. Rome, 240 Mass. 368. Munroe v. Taylor, 191 Mass. 483, relied on by the defendant is on the present record plainly distinguishable.
The instructions in so far as excepted to disclose no error of law for reasons already stated, and the exceptions to the admission of evidence not having been argued must be treated as waived.
Exceptions overruled.