38 A.D. 87 | N.Y. App. Div. | 1899
The plaintiff in this action is a broker, engaged in real estate transactions. One Cutner, an employee of the plaintiff, knowing that Messrs. Stern & Co. were desirous of purchasing a building in a certain location in New York, went to the defendant and asked if his house was for sale, and, if so, at what price. The defendant replied in substance' that, while the property was not for sale, he would consider an offer. Subsequently he offered to accept $82,000 for the house, provided the transaction was closed on that day, November 12, 1896. While there was an understanding that the contract should be closed on that day, the purchaser did not appear. The negotiation was afterward resumed, and on the sixteenth day of November Mr. Cutner, accompanied by Messrs. Stern,, Marks and their counsel, Mr. Amend, met in the office of the defendant,, who had, in the meantime, caused a contract to be drawn up for the sale of the property. Mr. Hartley, the defendant, was. present but a short time, leaving the matter to be arranged by his. assistant, Mr. Dally. The proposed contract was submitted tO' Messrs. Stern and Marks, who handed the same over to their lawyer, who pronounced it satisfactory. Then Mr. Stern asked that a clause be inserted whereby the purchaser should have the option of allowing $45,000 of the purchase price to remain on mortgage for one year at five per cent. It was in evidence that Mr. Dally consented to the insertion of this clause, though it was disputed by him, and he also swore that he had no authority from Mr. Hartley to vary the terms of sale as set forth in the contract, and this was not further-disputed. At this point the attorney for the proposed purchasers, disco vered in the abstract of title that the property, instead of being twenty-five feet front, as described by the broker and by the description contained in the contract, was in fact only twenty-four, feet seven and one-half inches wide. It is not pretended that there was. any fraud involved; the deed to the defendant described the property as having a frontage .of twenty-five feet, and the maps of the city also showed the sanie '-¡frontage. Upon the discovery of this defect in the title, Mr. Dally took the contract and said he would have it altered so that it should describe the property as twenty-four feet seven and one-half inches wide. . Mr. Marks said that the pur
At the trial the defendant moved, at the close of the plaintiff’s ■case; for a dismissal of the complaint. This motion was denied and ■an exception taken. At the close of the entire case the defendant moved for a verdict by direction ; this motion was also denied, and' ■an exception taken.
The plaintiff, to be entitled to recover in this action, was called upon to show that it had brought to the defendant a party who was ■able and willing to take the property at the defendant’s terms. ■ The ■defendant was the owner of a piece of property known as No. 17 West Thirtieth street, and this property was described in the deed ■to the defendant as having a frontage o-f twenty-five feet on West Thirtieth street. He was not seeking to sell this property; he made ■ no representations for the purpose of inducing a sale so far as appears, from the record, and no suggestion of - the kind is made. He simply said that if the proposed purchasers wanted the particular piece ■of property of which he was possessed, they might have it for-:$82,000, and he caused his attorney, after negotiations, to draw a ■contract for the sale of such property. He gave no one any authority to change the terms of the proposed contract, nor did he undertake to sell anything more than the premises on West Thirtieth street, being the premises now known as No. 17 West 30th street.” The question of whether these premises were correctly, described, in the •absence of any fraudulent representations, has no bearing upon the question presented in.this case. The plaintiff, under an implied contract, undertook to sell the property of the defendant, for which it. was to receive a commission, and “ the fundamental and correct doctrine is, that the duty assumed by the broker is to bring the minds -of the buyer and seller to an' agreement for a sale, and the price and . terms on which it is to be made, and until that is done his right to'
The law of this case seems to be well settled; the plaintiff must be able to establish that it has produced a party able and willing to take the property offered by the defendant at the defendant’s own terms; and to do this it must show that the parties to .the transaction have reached an enforcible agreement as between themselves. The defendant authorized.the plaintiff to sell a certain piece of property at a given price. The plaintiff has failed to produce a party who is willing and able to take this property upon the teVms prescribed by the defendant, and it has not earned, the commission which it seeks to recover.
The judgment and order appealed from should be reversed and a ■new trial granted, costs to abide the event.
■ All concurred.
Judgment and order reversed and new trial granted,"costs to abide the event.