Baer v. KochBaer v. Koch
Lead Opinion
Thе defendant, desiring to purchase some lots ■on 125th street, near Third avenue, in the city of New York, for the purpose of erecting a store, requested the plaintiffs to enter upon the -work of finding suitable property. After considerable effort on their part, they reported that no such property could be obtained in the ■desired locality, and then suggested to the defendant the expediency of purchasing further west, on 125th street, near Lenox avenue, and they were then authorized to look in that neighborhood. They procured •several pieces, among which was the property in question, which they reported to the defendant, with the terms • on which it could be purchased. It appears from the evidence thаt the plaintiffs were the first persons to whom a price had been given, and a sale of this particular piece of property authorized; and the main question litigated on the
It is no doubt true, as contended, by appellant, that in this action the burden of proof was upon the plaintiffs to establish their case, which from the verdict thеy successfully did, and, while the jury might well have found in favor of the defendant, yet the evidence abundantly sustains the conclusion at which they arrived, and we see no reason why it should be disturbed. But appellant contends that, notwithstanding this verdict, the plaintiffs should not rеcover, because they showed no express promise on the part of the defendant to pay the brokerage. But an employment for services involves an obligation to pay compensation therefor. In the absence of an agreement respecting the amount Of compensation, or of anything to show that the services were merely gratuitous, (and our experience with real-estate brokers, as gathered from the many cases brought in the court, is that thеy never work gratuitously,) the law implies a reasonable amount,—a quantum meruit; but a quantum meruit, in this case, is the usual commission paid for such services. Levy v. Coogan,
But appellant contends that the complaint should have been dismissed because the evidence shows that plaintiffs knew the property was wanted for the purpose of erecting thereon a store for the business of defendant’s firm, and that his partner should have been joined in the action. But this question was left to the jury upon the evidence as to whether plaintiffs knew that fact or not; and their attention was sharply drawn to it by the charge of the court, and they have found upon the evidence in plaintiffs’ favor upоn that point, which is conclusive upon us, in the absence of passion, prejudice, fraud, or mistake, none o,f which appears in this case. It therefore only remains to examine the exceptions, taken to the admission and exclusion of evidence, and- to the court’s charging as requested by the plaintiffs, and refusal to charge as requested by the defendant.
One of the plaintiffs, and one of his witnesses, were allowed to testify to certain conversations with persons other than parties to the action, and not in their presence. These questions were asked, not for the purpose of sustaining the main issues in the case, but simply by way of showing what the plaintiffs did in regard to procuring property for the defendant, and were admissible in order to determine the quantum meruit to which the plaintiffs were entitled. The objection as to conversations with Mr. Place was not well taken, as he was the agent for his wife, and acted for her as such agent throughout the negotiatiоns. Nor can it be justly said that the plaintiff Baer, on the witness stand, misrepresented Mr. Place’s ownership óf the property. We think the testimony only went to show that he was acting as such agent. It was not error to exclude the question asked of Mr. Bennett, a witness called on behalf of the defendant, as to whether or not the Place property was upon the sale books of real-estate brokers in Harlem. That question was entirely immaterial to the determination of the issues in controversy in this action. Nor did it tend to contradict the efforts rpade by the plaintiffs to procure property. The hypothetical question put to Mr. Libby, a witness called on behalf of the defendant, was properly excluded, as it did not contain all of the facts which had been. proved at that time. In short, we find no error in the admission or exclusion of evidence in this case which could by any possibility have injured the defendant, which must appear before we would be justified in reversing a judgment on this acсount.'
The appellant requested the court to charge “that, in the absence of an express agreement on the sale of real property, the vendor pays the brokerage.” It is quite true this is the general rule, as far as the vendоr is concerned, when he, employs a broker to sell for him; but the court- properly qualified this request by saying, as it did: “That is,
We therefore think the judgment should be affirmed, with cоsts,
BISCHOFF, J., concurs.
Concurrence Opinion
(concurring.) The action is by brokers to recover compensation for negotiating a purchase of property on behalf of the defendant. By his answer, and a motion to dismiss, the defendant interposed the objection of a defect of parties, in that the employment of the plaintiffs, if any, was not by the defendant individually, but by the firm of Koch & Reisenberg. In point of fact, the employment, if any, was by the defendant, Koch, but, nevertheless, it may have been for and in behalf of the firm, in which evеnt both members of the firm were necessary parties, provided Koch did not still engage himself only, or the plaintiffs were apprised that their employment was on account of the firm; for a member of a firm, acting for the firm, may so pledge his individual rеsponsibility as to afford relief against himself alone, or, by failure to disclose the joint interest, may subject himself to a several action. Noe v. Christie,
As to the employment of the plaintiffs. It appears that they were retained, in the first instance, to secure property in a specific locality; that suitable property in that locality was unattainable; that thereupon plaintiffs called defendant’s attention to the property in question, and suggested its purchase; and that accordingly he did purchase it. Upon these facts it is clear, beyond doubt, that the defendant did, in legal effect, employ the plaintiffs to purchase the identical property; but, if
The defendant resists the plaintiffs’ claim upon the further ground that they were not the prоcuring cause of the purchase. But they proffered the property to the defendant for a given price, and he eventually bought for that price. True, he declined the purchase at first; and true, also, that another broker had directed his attention to the property. But at last, he accepted the terms tendered by the plaintiffs. Whether plaintiffs or the other broker were the procuring cause of the purchase was fairly presented to the jury by the court, and their vеrdict is conclusive of the controversy. The fact that, after the plaintiffs had presented an acceptable vendor, the defendant took charge of the negotiation, and concluded it on the terms offered by the plaintiff, is ineffеctual to defeat their claim for compensation. Lloyd v. Matthews,
Nor is it of the slightest effect on the validity of the plaintiffs’ claim that the defendant never promised to pay them. Upon the rendition of services at the request and for the benefit of another, the law fastеns upon him an obligation to pay their reasonable value, and adjudges the customary or market price to be that reasonable value.
-Upon the issues discussed the evidence was conflicting; but, as they were submitted to the jury in a charge of the utmost fairness to the defendant, we repeat that it is not for us to disturb a verdict resting upon sufficient proof, and not, apparently, inconsistent with the interests of justice.