| New York Court of Common Pleas | Jun 6, 1892
Lead Opinion
This action was brought to recover commissions which the plaintiff claimed to have earned as a real-estate broker in procuring the sale of certain premises belonging to the defendant. Upon the trial the defendant claimed that the sale was not effected by the plaintiff, but by one Samuel Hyman. There was but one exception to the introduction of evidence argued upon the appeal, and that was as to statements made by Hyman to the plaintiff. This was allowed by the court only so far as it appeared that Hyman was the agent of Mr. Seholle, the purchaser. Before the question was asked calling for this evidence, testimony had been given tending to show that Hyman was employed by Seholle as his agent and bookkeeper; therefore all communications or negotiations had with Hyman in legal effect were communications and negotiations with his employer, Seholle. All the communications and negotiations the plaintiff had with Hyman were with respect to the sale of this property. It is clear that all the plaintiff did pursuant to his employment in relation to such sale while the employment continued was competent evidence to prove the performance of services by the plaintiff as broker. In fact, that was the very subject of contention,— whether or not he had done anything as broker; and, if it was proper to show what he did, we think it was competent to show the conversations with Hyman, as agent for the purchaser, as a part of the service rendered, and also tending to shpw that those services were of value to the defendant. It needs no argument to show the fallacy of the contention that a broker can
None of the exceptions to the judge’s charge, we think, were well taken. The first exception is to that portion pf the charge in which the judge said: “Therefore I instruct you that, even though Mr. Bickart was not present when the proposed purchase was consummated, it was the duty of Mr. Hoffmann to ascertain from the purchaser who sent him there.” It Is argued that this assumed, as conclusively proved—First, that Bickart was employed by Hoffmann to effect a sale, which was denied: and, second, that Hoffmann had some knowledge that plaintiff' was negotiating a sale of the premises, which the latter denied; and, third, that inquiry of Hyman would have disclosed the fact that he came there at the instance of Bickart, which was also denied by Hyman and Scholle. This argument is not sustained by the charge. Before delivering that portion of the charge, the judge had charged the jury that, “if the efforts of Mr. Bickart were the means to bring Mr. Scholle and Mr. Hoffmann together, and the sale resulted in consequence thereof, I instruct you that the commissions were earned;” and it was followed by: “As I said before, I instruct you that if you should determine that Mr. Bickart was the procuring cause of this sale, he is entitled to his com
The instructions of the court to disregard the counterclaim were proper. The defendant testified that the written lease provided that he should put the stable in good order; that he could not do any repairs before the plaintiff took possession, as another tenant was in; that the flagpole was a fixture of the place, and he cut it down without plaintiff’s knowledge, and without his consent; that it was decayed, and might have fallen in the street, and done damage. As the defendant was by his lease pledged to put the property in good repair, even if the plaintiff had agreed to pay half the expense of replacing the flagpole, it was a promise entirely without consideration, and void, for a promise to do what a party is obliged to do furnishes no consideration for a promise of outside compensation. Stilk v. Myrick, 2 Camp. 317. It was the defendant’s legal duty to replace the pole which he had cut down on account of its infirmity. The judgment should be affirmed, with costs.
Bischoff, J., concurs.
Concurrence Opinion
(concurring.) On the argument I was of the opinion that the proof failed to show the employment of plaintiff to sell the property, but a more careful examination of the evidence convinces me that it was sufficient to raise a question for the jury. Plaintiff told the defendant that he was seeking a purchaser; that he would send a party who would probably buy at defendant’s figure; and afterwards defendant asked plaintiff if he had a buyer for his property, to which plaintiff replied that he did not have one just then, but expected to have one. On no occasion is it apparent that defendant repudiated the services of the plaintiff, but rather that he accepted the offer of them. Counsel characterizes plaintiff as a volunteer, but an offer is always voluntary. True, defendant swears that he never employed plaintiff, but he may intend a construction of the circumstances which the law does not sanction. At all events, the evidence authorizes an inference of employment;