Barnard v. Monnot

| N.Y. Sup. Ct. | Feb 4, 1861

By the Court, Clerke, P. J.

It appears to me very evident that the plaintiff had no agency whatever in negotiating the second agreement effected between the defendant and Eno, It was essentially different from the bargain by which the latter was to give $250,000 for the property. It was only for a portion of it; of which the consideration money was $170,000; for which Eno gave the defendant Ho. 74 Broadway at a valuation of $100,000 instead of $110,000; Eno assuming a mortgage for $80,000 on the property which he purchased from the defendant. He also agreed to lend the defendant $50,000, and $10,000 being due on the difference in the valuation of the property to be exchanged, the defendant agreed to give a bond and mortgage on 74 Broadway for $60,000, with other special provisions. The first negotiation was for the whole property for $250,000, for which Eno was to pay by giving the defendant 555 Broadway at $120,000, 74 Broadway at $110,000, and $20,000 in cash.

It is evident, then, that the terms expressed in each negotiation would make the agreements entirely different. The first was never effectuated, so as to give it the character of a binding agreement. Undoubtedly, the broker’s compensation is earned by the completion of his service, which terminates when the vendor and vendee have agreed. But. it must be an agreement by which the parties are legally bound. Any thing less is-merely loose conversation. Parties may agree upon the price, and generally upon the other terms. But many questions remain to be adjusted and investigated, and arrangements to be settled, which can never be properly provided- for until the contract is formally reduced to writing; and if the owner of real estate is to be liable for a commission to a broker before the agreement is completed, in this way he maybe compelled to pay a great many commissions before he finally disposes of it. He, also, may discover that the purchaser is entirely irresponsible, or that he never intended to complete the agreement, or that he kept up a feigned negotiation for some sinister purpose of his own, or to give his friend the broker a ground for recovering his commissions. Of course nothing of this kind could be predicated of this transaction; broker,-vendor ¿nd vendee having conducted the negotiation apparently with the sincere intention of completing an agreement. I only mention these supposed cases to show the necessity of perfecting the agreement, in the method required by law, before the agent should be entitled to his commission. I am, therefore, of opinion that the signing of a contract for the purchase of real property is essential before the broker has a legal right to compensation; and for this reason, even if the plaintiff adduced testimony of his retainer by the defendant, sufficient to go to the jury, he could not recover any commissions for his agency in the first negotiation.

And with regard to the second, which, as we have seen, was a transaction totally different from the first, and which was completed so as to make it binding on the parties, -the plaintiff had no agency in it whatever. Eno, the purchaser, and the plaintiff’s own witness, says that the plaintiff had nothing to do with the agreement of -the 9th of June, (the one reduced to writing and signed by the parties,) that it was made by him and the defendant personally; “the plaintiff was not present and had nothing to do with it; it was made at my office.” This is not contradicted ; indeed it is not pretented by the plaintiff that he had any agency in the second negotiation, except, I suppose, so far as he maintains it was only a modification of the first, and that his services rendered in effecting that, entitled him to compensation on the agreement that was finally and legally concluded between the parties. But we have seen that although the first related to the whole property, and the second to a part of it, the transactions were entirely different.

The plaintiff, therefore, failed to make out his case; and the judge properly-dismissed the complaint.

I have not thought it necessary to inquire whether the plaintiff produced any evidence sufficient to go to the jury on the subject of the retainer. Even if he did, which I very much doubt, his case, for the reason above stated, would be incomplete.

[New York General Term, February 4, 1861.

The judgment should be affirmed with costs.

Clerke, Sutherland and Ingraham, Justices.]