13 Misc. 117 | New York Court of Common Pleas | 1895
This action was brought to recover broker’s commissions on the sale of certain real property situated at Peekskill, Westchester county, N. Y., and by consent was referred to a referee, who found in favor of the plaintiff. The judgment entered upon the referee’s report having been affirmed by the general term of the city court of New York, the defendants appealed to this court. The principal questions presented for solution upon this appeal are whether there was any evidence (1) that the plaintiff was the procuring cause of the sale, and (2) that his agency continued to the time of the sale. It appears from the undisputed evidence that the plaintiff had the property in his hands for sale for a period of nearly three years;
“Mr. Crouch knows a party who will give $27,000 for the farm if we are willing to sell it at that. * * * Mr. Crouch will go to see him if we will allow him the 2y2 per cent, commissions. * * * I have signed a contract in case you think it advisable to sell, so that Mr. Crouch can see his party at once, which he agreed to do in case we accepted the offer.”
Naturally Bates did not stand to his offer of $28,000, as it had been learned by his agent, Crouch, that the less offer, made through the intermediation of Ingersoll, would be accepted by the defendants if the sale could not be made at $28,000. Under the circumstances, we think there was sufficient evidence to support the conclusion of the referee. Bates was an. intending purchaser, whom the plaintiff had procured, and on whom he had long worked to create such a desire for the property that an offer satisfactory to the defendants might result. That his efforts were successful is evident from the fact that Bates, after failing to induce the plaintiff by the offer of $500 to use his influence in securing the property at a lower figure than his employers, the defendants, were asking, so far as his latest information disclosed, engaged another to make the purchase. Bates took the initiative, and selected his own agent and intermediaries, Crouch, Ingersoll, and Freeman, who acted for him, and the purchase was as much his act as though performed by him directly. The fact that a sale is finally made by the owners directly to the purchaser is not alone effectual to defeat the broker’s claim to commissions (Lloyd v. Matthews, 51 N. Y. 124; Martin v. Silliman, 53 N. Y. 615; Hanford v. Shapter, 4 Daly, 243); nor does the fact that the price obtained was not what the broker was instructed to procure have that effect (Gold v. Serrell, 6 Misc. Rep. 124, 26 N. Y. Supp. 5; Levy v. Coogan, 16 Daly, 137, 9 N. Y. Supp. 534; Baker v. Thomas [Com. Pl., Gen. Term, May 6, 1895] 33 N. Y. Supp. 613.) This case is distinguishable from Sibbald v. Iron Co., 83 N. Y. 378, where the plaintiff’s agency had been unmistakably terminated by the defendants in good
“There was no notice to the defendant that Kandrup [the broker] was still negotiating with the party. On the contrary, the notice was, in effect, that the negotiations were at an end.”
Besides, it should not pass unobserved that the latter case was an affirmance of a judgment entered upon the verdict of a jury, • while this is a case in which a conclusion that there was a termination of the agency would lead to a reversal of a judgment affirmed by the general term of the city court of New York, a case in which we are only to inquire whether there is any evidence to support the judgment. Gold v. Serrell, supra. The evidence in this case .is, we think, susceptible of contrary inferences as to the termination of the agency. The defendants did tell the plaintiff that they were about to accept another offer unless he produced his purchaser; but there had been so many proposals and counter proposals,_ offers, withdrawals, and refusals, notwithstanding which the plaintiff’s agency continued uninterrupted, that we think the referee and the court below were warranted, in view of all the facts, in inferring that there was no intention to terminate the agency. Winans v. Jaques, 10 Daly, 487, which was a reversal of a judgment entered upon the verdict of a jury, is hard, to distinguish from the present case. There the circumstances were as follows: Stevenson, plaintiff’s assignor, was a real-estate broker employed by the defendant to sell certain premises in the city of New York. He found a Mrs. Gill, who wanted such property. She told her husband of it, and he informed another broker, his friend, of the facts. That broker secured one Sewell to make the purchase on behalf of Mrs. Gill, to whom Sewell assigned his contract, and to whom the defendant conveyed the property. Before such conveyance the defendant objected that some claim might be made by another broker for commissions, but was assured that no such claim could be made, and that the law required him to make the deed to the assignee of the contract Judge Van Brunt, in speaking for the court, said:
“* * * It would appear as though it was a scheme upon the part of Mr. Gill to defraud Mr. Stevenson out of his commissions, and enable his friend Mr. Griswold to make such commissions. It may be unfortunate that the defendant in this action has been victimized by such a scheme, but that misfortune cannot deprive the plaintiff in this action of his right to recover.”