152 N.Y.S. 11 | N.Y. App. Div. | 1915
The plaintiff, as agent for one Champagne, sold to the defendant certain real estate for $12,500, receiving therefor the checks of the defendant drawn to Champagne, one of which for $500 was thereupon indorsed and turned over to the plaintiff. Defendant stopped payment on this latter check and this action was brought to recover thereon.
The trial court has adopted the defendant’s version of the facts as follows: The plaintiff, a real estate agent, asked him to buy the real estate; he asked what was the lowest price and received the reply that the owner would not take less than
The defendant had no legal interest in how much the plaintiff was to receive for his services; that was a question between him and the owner. Plaintiff’s plan contemplated $12,000 for the owner and $500 for himself, making the lowest price at which he, as the owner’s representative, was willing to sell the property. It is immaterial to the defendant whether the plaintiff or the owner has the $500. Knowing that the owner must have $12,000, the plaintiff required that the defendant pay $12,500, thus arranging the compensation at $500. While an agent should not be guilty of falsehood, he has a certain right to commend his property. If plaintiff had turned over to the owner the entire proceeds of the sale less the regular commission, no actionable fraud would have been committed upon the defendant. The vendor frequently says he will not take any less than a price named, although he is willing and perhaps expects ultimately to take less. The agent may, in the same way, seek to secure the best price, and he owes the
The defendant urges that under Douglass v. Richards (116 App. Div. 27) plaintiff cannot recover. We do not so understand that case. There a partner bought property for a firm for $4,000, each partner contributing $2,000. On the plaintiff’s false statement that the purchase price was $6,000 the defendant gave him a note for $1,000 and it was held that recovery could not be had upon this note. Here the plaintiff was not the defendant’s agent and was under no obligation to sell the property to him except upon his own terms, and under the agreement between him and the owner had a right to obtain the best price he could. A misstatement of fact, so long as it actually did not affect the value of the property, is not actionable. For all that appears the property may be worth much more than the price agreed to be paid. The judgment should, therefore, be reversed upon the law and the facts and judgment directed for the plaintiff for the amount of the check, with interest and costs in both courts.
All concurred.
Judgment of the County Court, reversed on law and facts, with costs, and judgment directed for the plaintiff for the amount of the check, with interest and costs. The court disapproves of the finding of fact that the plaintiff was the defendant’s agent and that the check was obtained by false representations and was without consideration.