74 N.Y.S. 1085 | N.Y. App. Div. | 1902
The action was brought by a real estate broker to recover commissions upon the sale of a piece of real estate by the defendant. At the end of the plaintiff’s case the defendant moved to dismiss the complaint upon the ground that the plaintiff was not employed by the defendant, and that the defendant had no knowledge that the plaintiff was a broker or assumed to act for him. This motion was denied to which the defendant excepted.
The plaintiff testified that he called upon a Mr. Smith and
We have thus a case in which there was no employment of the plaintiff by the defendant, and in which the defendant had no knowledge that the plaintiff assumed to represent the defendant in any way. Upon the evidence it would appear that the plaintiff acted as the agent of Smith in procuring the property, as he first called on Smith and suggested a purchase of the property and subsequently acted at Smith’s request or in his behalf in procuring the property. To justify a recovery there must be an employment of the broker either express or implied from the circumstances surrounding the transaction. There was certainly no express employment in .this case, and no facts were proved to justify an implied employment which would make the defendant liable for the services rendered by the broker in procuring a purchaser of the property. The mere fact that the plaintiff was a broker raised no such implication.
Potterton was called as a witness for the defendant and testified that he had a power of attorney from the defendant on his bank account, but had no authority over his property; that the rents Were sent to him by the real estate agent and he deposited them for the defendant; that he never stated to the defendant that the plaintiff was a broker, or claimed to act in that capacity; that he stated to the defendant that there were no brokers in the transaction, but that Smith and Benedict had come to the witness to buy the property and had waived any right to commissions. The defendant testified that at the interview between the plaintiff and Smith nothing was said about brokers or commissions; that the defendant had no knowledge that Benedict was a broker or claimed any commissions, or that he had assumed to represent the defendant.
These.requests of the plaintiff charged by the court entirely eliminated from the consideration of the jury the question of the employment by the defendant, and even if there had been evidence to justify the jury in finding that there was an implied employment, the charge of these requests in the form that they were charged was error and require a reversal of the judgment.
We think, however, that there was no evidence of any employment of the plaintiff by the defendant. There is no evidence that Potterton had authority from the defendant to employ brokers to act for him in the sale of his real estate;. no evidence that Potter-ton did employ the plaintiff to act for the defendant for that, purpose ; no evidence that the plaintiff ever assumed to act for the defendant. The offer to purchase the property was submitted by the purchaser to Potterton, who transmitted it to the defendant. There is. no authority to which our attention has been called that would justify a recovery for commission because a broker called upon the owner of property.
The plaintiff seems to rely in proving this employment upon the fact that Potterton was the defendant’s agent, but there is not a
It is hardly necessary to cite authorities to prove that there must be an employment to entitle a broker to commission for the sale of the property; but what was said by Judge Woodruff in Pierce v. Thomas (4 E. D. Smith, 354) so concisely states the legal principle-involved that the decision of this case can be rested upon his opinion. He says: “To entitle a broker to recover commissions for effecting a sale of real estate, it is indispensable that he should show that he was employed by the owner (or on his behalf) to make the sale. A ratification of his act, where original employment is wanting, may, in some circumstances, be equivalent to an original retainer, but'only where there is a plain intent to ratify. An owner cannot be enticed into a liability for commissions against his will. A mere volunteer without authority is not entitled to commissions, merely because he has inquired the price which an owner asks for his property, and has then sent a person to him who consents to take it. A broker has' no better elaihi to recover for voluntary service, rendered without employment, and not received and acted upon by the owner as rendered in his behalf, than any other volunteer. * * * If, upon this proof, an owner is liable, and against his express refusal to employ the plaintiff, then no man is safe in stating to applicants the terms upon which he will sell. It is not true that an owner may not declare his price to whom he will without the hazard of paying commissions to those who volunteer, unasked, to send him a purchaser on his own terms.”. In Bright v.
The judgment and order appealed from should, therefore, be reversed and a new trial Ordered, with costs to the appellant to abide the event.
" Van Brunt, P. J., McLaughlin, Hatch and Laughlin, JJ.,' concurred. ■
Judgment and Order reversed, new trial ordered, costs to appellant, to. abide event.