The opinion
By the Court.
The second of these actions is by a broker to recover a commission alleged to be due on a contract for sale of real estate. The first is an action by an owner of real estate to recover from the broker a deposit made with him on account of an agreement to. purchase, which the other party failed to carry out. The owner testified that at the time the agreement between her and the proposed purchaser was signed and the deposit was made by the latter, the broker said to her that “if the deal did not go through no *476 commission will be paid and the deposit would be paid to her.” If the judge believed this testimony touching the arrangements between the parties, the requests for instructions could not rightly have been given. The first request to the effect that the broker was entitled to a commission as soon as an agreement was signed ought not to have been given in view of all this testimony. The second request depended in part upon the soundness of the first; and in part upon the assumption that a paragraph in the agreement bound the owner in her relations with the broker. The agreement was under seal and the broker was not a party to it. There is no error of law disclosed on the record. John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass. 8, 19 . The evidence did not in any aspect call for the application of the principle of Alvord v. Cook, 174 Mass. 120 .
Order dismissing report affirmed.