| N.Y. App. Div. | Nov 8, 1907
This is an action to recover commissions alleged to have been earned by the plaintiff under an employment by the defendant to sell certain real estate on Long Island. The complaint alleges that under this employment plaintiff procured an offer of' $40,000 cash for said property “ from a person who was 'ready and willing to pay . said sum therefor, and plaintiff communicated said offer to the defendant, but the defendant was unable to make or perfect a title . to said property, whereupon and on or about the 26th day of December, 1902, the person who made the said offer withdrew the same.” This is denied by the answer, and we are of the opinion that the plaintiff was then bound to show that his proposed purchaser was ready and willing to pay tlie sum alleged before there can be any recovery. The rule is generally recognized; where the negotiation of sale has not. resulted in an enforcible'contract, it is necessary that the broker should show not only that his proposed customer is willing but able to purchase upon the terms of the seller. (Woolley v. Lowenstein, 83 Hun, 155" court="N.Y. Sup. Ct." date_filed="1894-12-10" href="https://app.midpage.ai/document/woolley-v-loewenstein-5507715?utm_source=webapp" opinion_id="5507715">83 Hun, 155, 156; Alt v. Doscher, 102 App. Div. 346.) There is no evidence here to show that Mr. Sulzer, the proposed purchaser, was willing and able to take the premises upon the defendant’s terms. There is nothing to show Mr. Sulzer to be able to pay $40,000, and if there was, there is no evidence that the defendant was ever willing to take $40,000, or any other sum, provided it had the right to sell. There was, we may assume from the plaintiff’s evidence, some general .talk that the defendant was about to foreclose a certain mortgage which it held upon the premises, and 'that the bank would be satisfied to get out of it with the amount .of its claim, with interest, expenses, etc., but it is certain that the plaintiff was not authorized to sell for this figure, for he reported to the defendant’s representative two offers in excess of some $32,000 or $33,000, being the sum involved, and these were "rejected, and . the proposition for $40,000 was only under consideration when the negotiation came to an end because the' bank could, not get title. There is no suggestion of any fraud or bad faith in the matter, and the evidence fails to disclose any figure which the defendant was willing to accept for the premises.
We are of opinion, under the evidence, that the plaintiff knew fully the condition of the title; knew that the defendant might not be able
Ingraham and Scott, JJ., concurred; Patterson, P. J., and Clarke, J., concurred in result.
Judgment and order reversed, new'trial ordered, costs to appellant to abide event.