The defendant owning a garage told the plaintiff, a real estate broker, that if he procured a purchaser who would pay $20,000 for the property he should receive a commission of $1,000. The plaintiff after negotiations succeeded in effecting a sale to one Carter on terms shown by a contract in writing executed on May 26, 1919, by Carter and the defendant. While the purchase price was $20,000, of which $1,000 was to be paid on or before a date named, the contract provides “that the above mentioned business will show a net profit of Six Hundred Dollars . . . per month or approximately . . . Seven Thousand Dollars . . . a year,” and that Carter “agrees to buy . . . providing the business is as represented, . . But, even if the jury would have been warranted in finding on the evidence introduced by the plaintiff that at various interviews between the plaintiff and the defendant, as well as with Carter during the period preced*489mg its date, the agreement expressed the mutual understanding of the contracting parties; and the sale was expressly made dependent upon the condition previously quoted. The plaintiff does not contend, nor is there any evidence to show, that the annual net profit would be even approximately the amount named in the agreement.

The question of the exclusion in evidence of a memorandum made by the plaintiff’s son showing the gross income during the months of April and May not having been argued is to be treated as waived, and, never having made a sale to a customer ready, able and willing, unconditionally, to buy for $20,000 and take the garage as he found it, the verdict for the defendant was rightly ordered. Clark v. Bonner, 217 Mass. 201. Woods v. Matthews, 224 Mass. 577. Bruce v. Meserve, 228 Mass. 463. Doten v. Chase, 237 Mass. 218.

Exceptions overruled,.