7 Daly 13 | New York Court of Common Pleas | 1877
The claim of a real estate broker to his commission for effecting a sale (in the absence of any other controlling circumstance), accrues when the purchaser whom he has procured has entered into an agreement with his employer for the purchase and sale of the property. The contract of employment of the plaintiff by the defendants as declared in his complaint and testified to on his behalf (subject to the consideration hereafter stated, relating to Mrs. James,) became perfect upon the execution of the contract with Burchell, the purchaser. The testimony offered on the part of the defendant was in denial of any such employment, and of a mere gratuitous promise by the defendant, E. D. James, after the contract was executed, that if the purchase was completed by Burchell he would pay to plaintiff a commission of one per cent; that he told plaintiff originally that he would pay no commission. He was agent for his wife in relation to her real estate ; made sales and purchases for her, and she was willing to sell on the terms of the contract. It also appeared that Mrs. James signed the contract in conjunction with her husband when brought to her by the plaintiff, who then told her he was a real estate broker. The
In addition to this, there certainly was no competent evidence of plaintiff’s employment by the defendant, Sarah James. Her co-defendant was her agent to effect sales of her real estate. The employment of a sub-agent or broker is not shown to have been necessary or recognized as usual by any well-established custom, and plaintiff's mere suggestion to her when he called and procured her signature to and execution of the contract of sale, that he was a real estate broker, conveyed no intimation that he had been acting in that capacity for her, on employment through her husband upon her credit and responsibility. (Jones v. Walker, 63 N.Y. 612.) The judgment should be reversed, a new trial ordered with costs to abide the event.
I agree that there must be a new trial for allowing the plaintiff to show under the defendants’ objection, by parol, defects and objections to
LABREMOSE, J., concurred.
Judgment reversed and new trial ordered.