129 N.Y.S. 408 | N.Y. App. Div. | 1911
The cause of action upon which plaintiff has recovered herein is based upon allegations that in February, 1909, defendants, who were owners of premises known as Nos. 10, 12, 14, 16 and 18 West One Hundred and Tenth street, in the borough of Manhattan, city of New York, authorized and employed the plaintiff and one Harrison, real estate brokers, “ to find for them a person or persons ready, able and willing to buy the said five (5) lots and houses thereon or any one or more thereof, upon certain terms and conditions, ” and agreed to pay the brokers a commission of one per cent for their services; that thereafter the plaintiff and Harrison “procured a person ready, able and willing to buy four (4) of the said houses at the price of Twenty-eight thousand three hundred and seventy-five ($28,375) dollars for each thereof, which price was satisfactory and acceptable to the defendants, and upon the terms and conditions acceptable to them, which person thereupon offered to purchase the said (4) houses at the price and upon the terms and conditions afore-' said, but the defendants thereupon refused to consummate the transaction; ” that demand has been duly made for the payment of the commissions claimed to be due, but no part thereof has been paid, and that Harrison has assigned all his interest therein to the plaintiff. The answer was a general denial. The testimony on behalf of the plaintiff disclosed that in the course of a business call upon the defendants, Harrison, plaintiff’s assignor, there saw a list of properties which they had for sale and upon which appeared the five houses in question, listed at an aggregate asking price of $165,000, subject to mortgages aggregating $137,500; the four parcels ultimately claimed to have been sold, Nos. 12, 14,16 and 18 West One Hundred and Tenth street, being listed at an aggregate price of $133,000, subject to mortgages amounting to $110,000.
The defendants are claimed to have then told Harrison that they thought he- could sell the houses very easily, and asked him to take the list, to which Harrison replied that it was
Isaac Purtman, the proposed purchaser, testified in effect that he was ready, able and willing to make an agreement to purchase the four houses in question for $3,500 in- cash over and above the mortgages thereon, which it appears were first and second mortgages on each hóuse. He was positive that the amount of deposit, $1,000, the time when title was to pass (within thirty days), as well as the purchase price, were fixed hy defendants in their conversations with him over the telephone, hut he was unable to state anything that was said'as to the adjustment of rents, insurance and interest, as “it didn’t come that far.” 'His understanding of the demand made hy the defendants as an additional condition of the agreement was that they desired to have the accrued interest, which was to he allowed the purchaser, deposited with them until the due day. He claimed that the question
Defendants claim that Harrison had agreed to accept $250 originally as his commission on th!e sale if made. It appeared from the testimony of this witness that the amount of the accrued interest which would have been' allowed to the purchaser upon taking title and which defendants desire to retain for their protection was about $1,500. Their purpose, as explained, was to prevent the purchaser getting title to this $118,000 worth of property by the payment of about $2,000 in cash, collecting the rents as long as they could and defaulting in the payment of the interest on the mortgages when it accrued. The rents of the houses were about $3,000 each per annum. Jacob B. Engel, the attorney for Starr, the prior purchaser, testified that he was present at the conversation with the latter in defendants’ office when Harrison was present, but he was not allowed to testify to what was said about the retention of the interest due on the first and second mortgages.
Louis Starr, the prior purchaser produced by Harrison, testified to his visit to defendants’ office, but was not allowed to testify as to what was then said in Harrison’s presence in reference to an insistence-by defendants upon the retaining of the accrued interest upon the first and second mortgages. William M. G-olden, the attorney who prepared the proposed contracts between defendants and Purtman, testified that he drew the proposed contract for the sale of the premises in question, but he was not allowed to testify to what transpired at the time in the presence of all the parties and was not even permitted to say whether the proposed contract was examined or read by either Purtman or Plarrison. On cross-examination it appeared that he had prepared the proposed contract with Purtman from the prior proposed contract with Starr and both of these proposed contracts when offered in evidence were excluded, although they apparently corroborated the testimony
An important issue in the case was whether, prior to the final meeting in defendants’ office,' they had imposed as a condition for any agreement to sell the premises in question the inclusion of a-clause providing for the retention'by them of the amount of accrued interest to be allowed the purchaser up to the time of taking title. If such was the fact, to the knowledge of the brokers or either of them the plaintiff, as the court prop-' erly charged the jury, could not recover any amount whatever, for he pleaded that he had produced a purchaser ready, able and willing to . comply with the terms and conditions fixed by them, and concededly he produced no one who was willing to buy the premises and conform to such a provision.' Upon that question of the knowledge of either Arnold or Harrison of such condition imposed by defendants, as well as upon the question of whether it was ever actually announced by them prior to the final meeting in their office, the testimony of Bachrach, Engel and Starr as to what transpired in the presence and hearing of Harrison at the- prior negotiations with respect to the sale of this very property and the inclusion of a similar provision for the deposit of the accrued interest, was material; and so also were the contracts drawn up under defendants’ supervision, and submitted for the approval of both Starr and Purtman in-' the-presence and hearing of Harrison.
■ The exclusion of such testimony and exhibits, duly excepted to, constitute reversible error. It was also error to refuse to permit the cross-examination of Harrison as to the demand for the deposit of the accrued interest having been made in his presence during the negotiations with Starr, his customer, ás a condition for any agreement to sell; and to exclude the
The main question involved under the form of the complaint in this action is, did defendants furnish to the brokers the full terms and conditions upon which they were willing to. sell the property in question, and did the brokers produce a customer ready, willing and able to comply with those terms.
In the absence of a special agreement, the services rendered by a broker to an owner of real estate generally fall into one of two categories: (1) Where the owner has given the broker the full and complete terms upon which he is willing to sell his property, and not merely the asking price thereof; (2) where the owner has his property for sale, and may or may not have set an asking price thereon, but does not fix the terms of the transaction, leaving them to be determined thereafter. In the first case the broker’s duty is fulfilled and his commissions are earned when he produces a customer ready, willing and able to comply with all the terms fixed by the owner; should the latter, then desire to add to the terms already imposed, the additional conditions must be germane to the original ones, if they are to furnish a sufficient reason for the refusal to pay the broker in case of the customer’s refusal to agree to any modification of the original tórms. In the second case, the broker’s commis- . sions are not earned until the customer produced by him reaches an agreement with the owner upon the price and terms upon which a sale can be made. This of course does not mean that a contract in writing must be signed by the parties, but that their minds must meet not only upon the price but upon the essential terms of an agreement to purchase. (Backer v. Ratkowsky, 137 App. Div. 564; Tanenbaum v. Boehm, 126 id. 731; Haase v. Schneider, 112 id. 337; Pullich v. Casey, 43 id. 122.) Under the pleadings herein the main questions of fact, therefore, were: Did the defendants communicate to the brokers the terms upon which they were willing to sell their property; if so, what were those terms; and did the brokers produce a customer, ready, willing and able to comply therewith.
The determination of the Appellate Term and the judgment
■ Ingraham, P. J., McLaughlin, Scott and Miller, JJ.,. concurred.
. Determination reversed and judgment of City Court reversed and a new trial ordered, with costs in this court and in the courts below to appellants to abide event.