Pierce, J.
At the trial there was evidence to warrant a finding that the plaintiff was employed by the defendant as a broker to find a customer for certain premises; that the plaintiff procured prospective purchasers in.the persons of one Keenan and one Fitzgerald; that on September 3,1919, the plaintiff, the defendant, Keenan and Fitzgerald met at the office of the plaintiff; that a paper in the form of an agreement under seal to buy and sell the premises was made out by the plaintiff and submitted to the parties; that the terms thereof were mutually agreeable; that Keenan and Fitzgerald desired to show the agreement to their lawyer before signing it; that they took it away without either patty signing it; that the defendant agreed that it should be taken away and also agreed that if the papers were signed by noon of the next day, he would be at the plaintiff’s office at three o’clock in the afternoon the next day to accept of the deposit and would sign the paper; that on the following day at half past nine in the morning the defendant informed the broker that he did not intend to sell the house to Keenan and Fitzgerald; that he had another party to buy it and had sold it to him; that on the same day at noon, Keenan and Fitzgerald returned the agreement with their signatures and left the deposit with the plaintiff. There was further evidence that the date for the passing of the papers was-set for October 3.
The decisive question presented is, did the defendant and the prospective customers intend that their oral agreement to the terms of purchase and sale embodied in the formal instrument should be presently binding upon them, or did they intend to be bound only upon the execution of the written, formal agreement. We think it plain that the parties intended the execution of the formal instrument to be more than a convenient memorial, or record of bargain which they had already concluded. The proposed agreement evidently was prepared with the purpose to bind the parties as against the defence of the statute of frauds and that of absence of mutuality of obligation. The "terms of which” agreement, that is, those contained in the proposed formal agreement, “were mutually agreeable to the parties.” The purchasers “desired to show the agreement to their lawyer before signing it;” the defendant agreed that they might do so and he also agreed “to accept of the deposit” and to “sign the paper” if the papers were signed by noon of the next day. “The circumstance that the parties do intend a subsequent agreement to be made, is strong evidence to show that they did not intend the previous negotiations to amount to an agreement.” Ridgway v. Wharton, 6 H. L. Cas. 238, 268. Lyman v. Robinson, 14 Allen, 242. Beach & Clarridge Co. v. American Steam Gauge & Valve Manuf. Co. 202 Mass. 177, 182. Mississippi & Dominion Steamship Co. Ltd. v. Swift, 86 Maine, 248.
The plaintiff to recover must prove that the customers produced by him, or one of them, were ready, willing and able to purchase the premises on the defendant’s terms at a time antecedent to the time his authority was revoked. So long as the terms of the oral or written agreement remained in a state of a qualified acceptance, in the nature of things it cannot be said the plaintiff produced a customer ready, willing and able to become the purchaser of the premises on the defendant’s terms. Woods v. Matthews, 224 Mass. 577. Leslie v. Wilder, 228 Mass. 343. Bruce v. Meserve, 228 Mass. 463. Hampden Railroad v. Boston & Maine Railroad, 233 Mass. 411, 417.
In the absence of fraud, of which there is no evidence in the case at bar, the defendant had the legal right to discharge the plaintiff without obligation to pay for services rendered in procuring a customer, at any time before the customers had finally and definitely accepted the terms of the agreement of conveyance presented by the defendant to the customers as the basis of their negotiation of sale. Cadigan v. Crabtree, 179 Mass. 474.
It follows that the request that “On all the evidence the finding must be for the defendant” should have been given. It also follows that the order of the Municipal Court, “Report dismissed,” must be reversed, and judgment be entered for the defendant.
So ordered.