23 N.Y.S. 154 | The Superior Court of the City of New York and Buffalo | 1893
At the close of the whole case, both parties moved for the direction of a verdict. Neither requested that any question of fact be submitted to the jury. On the argument before us the counsel for the defendants conceded that the question to be determined is one of law. The substantial question, therefore, is whether, upon the evidence, the verdict should have been directed,
In employing a broker to sell real estate, the vendor’s liability for the broker’s services depends upon his contract with the broker, which may be express or implied. In the case of an express and special contract, the broker, in order to recover his commission from the vendor, must establish that he performed the special contract in every particular, by producing to the vendor a party able and ready and willing to take the property upon the precise terms prescribed by the vendor. In the absence of an express contract the implication, usually, is that the broker becomes entitled to the usual commissions whenever he brings to the vendor a party who is able and ready and willing to take the property upon the terms then named by the vendor, although the particulars may be arranged between vendor and vendee directly; but in every case the broker’s services must result in a complete meeting of the minds of both vendor and vendee, for the duty he undertakes, the obligation he assumes, as a condition of his right to demand commissions, is to bring the-vendor and vendee .to an agreement. Sibbald v. Iron Co., 83 N. Y. 381; Alden v. Earle, 121 N. Y. 688, 24 N. E. Rep. 705, affirming 4 N. Y. Supp. 548. Whenever the broker’s services have resulted in such a complete meeting of the minds of both vendor and vendee, he is, in the absence of an express stipulation to the contrary, entitled to the compensation agreed upon, or to the usual commission, although the vendor changes his mind, and refuses to enter into a written contract. In such a case the vendor cannot, by his own wrongful act, deprive the broker of his commission. On the other hand, as long as the vendor insists upon something which he has a right to insist upon as a condition of sale, and to which the vendee refuses to assent, in consequence of which disagreement the vendee refuses to enter into an enforceable contract, it cannot be held that the broker procured a complete meeting of the minds of both vendor and vendee. This proposition is self-evident. In Platt v. Kohler, 65 Hun, 557, 20 N. Y. Supp. 547, it was expressly held that where the vendor stands ready to perform, and to enter into a contract, on conditions he has authorized, the broker’s right to commissions depends upon his procuring a person ready and willing to contract in such a way as to be legally bound to perform. To the same effect is Crombie v. Waldo, (N. Y. App.) 32 N. E. Rep. 1042. How, the case at bar is not one where the broker, having been given definite terms on which to sell, produces a buyer able and willing and ready to comply with such terms. It is a case of implied contract. Before the defendants came to plaintiff’s office on the day the paper was
“New York, Nov. 10th., 1890.
“We, J. J. Egan and D. Hallecy, do hereby agree to sell the 5-story flat situated on the S. W. comer of West End avenue and Seventy-Eighth street to Henry Rothmann; and I, Henry Rothmann, hereby do agree to purchase the above-described premises at the purchase price of ($34,650) thirty-four thousand six hundred and fifty dollars, and pay in hand to J. J. Egan & D. Hallecy 50 dollars, the receipt ,of which is hereby acknowledged, to bind contract, which is to be executed at the office of E. Whitlock, 291 Broadway, New York city, and upon payment of 1,000 dollars, and the balance according to contract, as follows: 8,650 dollars in cash, and 25,000 dollars in purchase-money mortgage. Property is to be delivered free and clear of all claim or claims up to the day taking title, except street assessments.
On contract ...................................................$ 1,000
For deed...................................................... 8,650
Mortgage...................................................... 25,000
$34,650
[Signed] “J. J. Egan.
“Daniel Hallecy.
“Henry Rothmann.”
The said Rothmann, as vendee, and the defendants, as vendors, had no personal understanding with each other in the matter, except as expressed in the said written instrument, the bargaining having been carried on through the plaintiff as broker. Subsequently Rothmann and the defendant Egan met at the place specified in the written instrument to enter into a formal contract, and were unable to agree upon the terms of the mortgage, and thereupon Rothmann refused to enter into any further contract, and the negotiations were broken off, and were never resumed. The question, therefore, arises, whether the said written instrument, of itself, was or was not an enforceable contract for the sale and purchase of the real estate therein referred to. After much research and reflection, I have come to the conclusion that it was not a contract upon which the vendors could rest an action to compel the vendee to perform, but was merely—at least, so far as the vendee was concerned—an agreement that he would thereafter execute a contract to purchase, or forfeit the $50 paid as liquidated damages. In other words the vendors gave to the vendee an option, good until the meeting at which the contract was to be executed, for which option the vendee paid $50. At most, it was a contract for a contract; for the whole instrument must be read together, in which case the opening words relating to buying and selling are clearly qualified by “pay in hand * * * $50.00 to bind contract which is to be executed,” and because the $50 paid formed no part of the consideration of $34,650 to be paid for the property, for the whole of that sum was otherwise provided for. In this respect the case is just the reverse of Simonson v. Kissick, 4 Daly, 143, in which $75 had been paid on account of, and as part of, the purchase price.
The defendants’ case becomes still stronger when the circumstances surrounding the execution of the written instrument, and the reasons for the refusal of the vendee to execute a further contract, are considered. Aside from the claim of the defendants that they told plaintiff that they would sign no contract outside of Whit-lock’s office, which is denied by the plaintiff, the preponderance of evidence given at the trial is to'the effect (1) that the plaintiff, who drew the written instrument himself, in order to secure, if possible, his commissions, procured the signature of the vendee to it upon the representation that the mortgage of $25,000 was to run for five years, although neither of the defendants had authorized him so to do, or had ever told him so, and although there was already on the property a mortgage for that amount, having about a year to run; (2) that, although nothing whatever was said by either of the parties concerning the terms of the mortgage, the plaintiff made the written instrument provide for a purchase money mortgage,—a provision which the defendants did not intend to
Upon the whole case, it therefore fully appears that the plaintiff, as broker, never procured a complete meeting of the minds of both vendors and vendee, either in writing or by paroi, or part one and part the other, and that, consequently, he had never earned his commission. That being so, and both parties having moved for the direction of a verdict, the verdict should have been directed for the defendants. The exceptions taken by the defendants should be sustained, the verdict set aside, and a new trial ordered, with costs to the defendants, to abide the event. All concur.