192 A.D. 790 | N.Y. App. Div. | 1920
The plaintiff is a corporation engaged in the business of selling real estate on commissions. It made a written agreement with the defendant that if it sold his farm, including certain personal property thereon it should have as its compensation all of the purchase price in excess of $9,000. A cash payment of $1,500 was to be paid the defendant on such sale. The plaintiff procured a prospective purchaser at the price of $10,000. He delivered to the plaintiff $2,000 on' account of the purchase which the plaintiff tendered to the defendant. The latter having changed his mind about selling the farm, declined the tender and refused to continue negotiations with a view to consummating the sale. The plaintiff has recovered in this action $1,000 on the theory that it has fully earned its commissions or compensation for effecting the sale of the farm.
The contract between the parties to this action known as the listing contract consists of numerous questions and answers thereto given by the defendant. Among them are the following: “ Price? $9,000 net to owner. What is smallest amount you will take as cash payment? $1,500 net to owner and title to all personal property to be retained. * * * How soon after sale will you give possession? At once, except house occupied.” It is entirely obvious from the foregoing questions
The defendant wrongfully refused to negotiate with a view to working out the details of the sale. He practically terminated the plaintiff’s contract of employment. The plaintiff is not without redress, but as its contract has not been performed a recovery in its favor cannot rest on the performance thereof. The rule of damages is stated in 4 Ruling Case Law (p. 255) as follows: “ Where the principal wrongfully terminates the contract of employment by revoking the broker’s authority, the latter is entitled to recover as damages not only the value of such services as he has already rendered together with such disbursements as he has made in his' employer’s behalf, but also such prospective profits as he can reasonably establish would have been his but for the wrongful revocation of his authority.” It is stated in Cyc. (Vol. 19, p. 272): “ If a sale by an owner who has placed lands in the hands of a broker for sale works a breach of contract with the broker, an action by him should be based on the breach and not on a performance of the contract.”
A recovery by the plaintiff should, therefore, have been limited to its actual damages sustained because of the defendant’s breach of contract. We do not intend to hold that in no similar case could there be no recovers/ for the agreed
The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concur.
Judgment reversed and new trial granted, with costs to the appellant to abide the event.