106 Misc. 504 | N.Y. App. Term. | 1919
The plaintiffs are real estate brokers who were engaged prior to March 15, 1918, in efforts to procure for the defendant a loan of $57,000 on premises which the defendant had purchased. They had some negotiations with the Lincoln Trust Company
“ We hereby agree to make a first mortgage loan for the amount of $57,000 for a period of 3 years with interest at 5%%, the said mortgage loan to be secured by property Nos. 658 and 660 West 160th Street, as shown upon your diagram and with the bond of Emil Reich. Mr. Reich agrees to purchase a participating interest in the said mortgage of $2,000, which participating interest is to be held by the Trust Company as, security for his personal note, payable in six months, with interest at 6%.
“ In consideration of the Trust Company making the above loan, Mr. Reich agrees to purchase from the Trust Company property No. 343-345 East 101st Street at the price of $35,000 to be paid for as follows:
“ Cash $6,000 and a purchase money mortgage of $29,000, due 3 years from now with interest at 5% and the said mortgage to provide for payments in reduction of principal of $500 each six months during the life of the mortgage.
“ Very truly yours, •
“A. M. Hyatt,
“Vice-President”.
After securing that letter, but before delivering it to the defendant, they obtained from him an offer or unilateral contract in writing, as follows:
“ In consideration of One Dollar, the receipt ■ of which is hereby acknowledged, authorize M. Cohen & Co. to procure for me an acceptance of $57,000 on first mortgage at 5%% interest per annum for three years on property situated at - #656-658-660 West 160th Street, New York City, and on obtaining said acceptance we agree to pay therefor 2% and disbursements*507 to cover attorney’s fee, disbursements, and brokerage and I also agree to pay the State Mortgage Tax. Disbursements to include net cost of title policy.
“ This authorization is to remain in force until 191 at o’clock. The brokers agree to stand y2 expenses of recording mortg. of $29,000 at 5% on No. 343 and 345 East 101st Street, New York City.
“ E. Reich.”
The defendant thereupon placed upon the letter of the Lincoln Trust Company the words " I hereby accept the above, E. Reich.” The transaction between the Lincoln Trust Company and the defendant was never consummated, but the plaintiffs claim that under the terms of the defendant’s offer they had performed their full obligation and became entitled to the agreed compensation as soon as they delivered to the defendant the letter from the Lincoln Trust Company offering to loan the sum of $57,000 to the defendant upon terms which were satisfactory to the defendant. The trial justice after hearing the evidence directed a verdict in favor of the plaintiffs for the amount of the agreed commissions and also for additional commissions which the plaintiffs claim they would have earned and received from the Lincoln Trust Company if the defendant had carried out his agreement to purchase from the trust company its property at 343-345 East One Hundred and First street.
For reasons to which I will refer hereafter, it seems to me quite evident that under no circumstances could the plaintiff recover from this defendant for loss of commissions he might have earned from the Lincoln Trust Company for the sale of its property, but even the recovery of the agreed commission of two per cent and disbursements, less certain expenses, can be sus
Since the parties herein never agreed upon all the terms upon which the defendant was to purchase the One Hundred and First street premises from the Lincoln Trust Company and since the only “ acceptance ” of a loan procured by the plaintiff was an offer on the part of the Lincoln Trust Company conditioned upon the defendant agreeing to purchase this property, it follows that the plaintiffs have neither procured a loan for the defendant nor a customer ready and willing to
Weeks and Finch, JJ., concur.
Judgment reversed, with costs.