26 N.Y.S. 375 | N.Y. Sup. Ct. | 1893
The facts in this case, so far as relate to the questions presented on this appeal, can be briefly stated. The action was to recover damages for the breach of a contract. The contract as alleged, and found by the jury, was that the plaintiff would transfer to the defendants his farm for the sum of $2,200; that the defendants would sell it to one Olmstead, if possible, and get the highest price they could obtain, and divide equally with the plaintiff any sum they should receive for. it in excess of the price paid. In pursuance of this agreement the plaintiff deeded his farm to the ■defendants, who on the same day sold and conveyed it to Olmstead. The consideration for the last transfer was $2,800, which was paid 'by transferring to the defendants another farm at the agreed price of $1,700, and delivering to them a bond and mortgage for -$1,100. The defendants paid the plaintiff the consideration named in the deed to them, and for certain personal property purchased by them of the plaintiff, but did not pay him any portion of the amount they were to receive for the farm in excess of the price .paid. This action was to recover one-half of the profits arising from such purchase and sale. If the contract between the parties was. valid, the proof was sufficient to sustain the verdict. The farm received from Olmstead in exchange for the one sold1 by the plaintiff has not been sold by the defendants, yet the plaintiff’s proof was that he offered to take the place at the price allowed for it by the defendants, provided they would allow him one-half of the sum that the defendants would thus receive above the $2,200 paid for the plaintiff’s farm, as they agreed, and that the defendants not only refused to allow or pay him that sum, but denied the existence of any such -contract, or any liability on their part to pay the plaintiff any portion of the profits of the transaction. Under these circumstances we are of the opinion that the plaintiff was entitled to maintain this action, provided the contract between the parties can be enforced, and that the .defendants’ motion to dismiss the action because it •was prematurely brought was properly denied.
The most important and the only other question raised on this