28 N.Y.S. 698 | The Superior Court of the City of New York and Buffalo | 1894
The plaintiff, by his action, seeks to recover commissions due him as a broker for effecting a contract of sale of real
Prior to November 8, 1890, plaintiff was engaged in a negotiation for defendant’s land as a purchaser with others. On that day defendant drew up and delivered to plaintiff an option, whereby, among other things, he gave the latter a refusal of his farm of 166 acres for 60 days at the price of $175,000, free of taxes then existing, payment down to be not less than $10,000, and an equal sum to be thereafter paid every six months until at least $40,000 was paid. “The balance over and above this amount, say $135,000, more or
“Buffalo, Dec. 18th, 1890.
“John H. Smith and Henry Weill hereby agree to purchase the within-described property at the within-mentioned terms and price, with the only exception that said price is changed to one hundred and fifty-five thousand dollars, and interest at five per cent. George P. Sawyer.
“John H. Smith.
“Henry Weill.”
The testimony upon the part of plaintiff tended to establish that the parties reached an agreement upon the purchase price of the property, and that plaintiff proposed to draw a contract of sale; and that, as it was late, it was finally proposed that the option contract be used for that purpose, and the agreement presently reached be indorsed thereon, which was done, and constituted the contract of purchase. Thereupon the parties separated.
It is quite likely, if it be conceded that the parties executed the instrument indorsed upon the option without reservation, that it' can be upheld as a valid contract for the sale of the land; but it is not necessary to now determine this question, and I express no opinion thereon. The question presented by this appeal is not necessarily dependent upon the fact of whether it is a valid, enforceable contract or not, but rather upon the proposition whether the parties’ minds met upon the agreement of sale as expressed therein; the one agreeing to buy and the other to sell. If they - did, then plaintiff becomes entitled to recover, irrespective of the fact that indefiniteness attends upon the terms used to express that agreement. If they did not, however binding in form it may have-been, yet, if the parties did not regard it as their entire contract, and it was not expressive of their minds, but they expected thereafter to make it so, no commissions were earned; and here is-where the serious question arises. Weill was examined minutely and at length as to what the circumstances were attending the signing of the indorsement. Practically the whole is summed up in these words:
“Mr. Folinsbee was very anxious to have that article signed, and I said: That article don’t amount to anything. If you want me to sign that, I will
The jury were authorized to find from this testimony that Weill signed the indorsement with a reservation of withdrawal, which, if waived, was to result in the execution of a contract expressive of the details of the proposed terms of sale. In this regard the court submitted the question in two aspects: Did the parties’ minds meet upon the fact that the writing signed by them constituted their •entire agreement of sale? Did one of the purchasers reserve the right to cancel his connection therewith the day after it was signed? The latter proposition, upon the evidence and by concession of plaintiff’s counsel, presented a question of fact, and was properly submitted to the jury. The first is challenged, and presents the main features of controversy. Keeping clearly in view plaintiff’s contract to procure a meeting of minds upon price and terms, this matter becomes more Simple and plain. The question is not one between the parties to the instrument, and cannot be governed by the •same rules, in all respects, as would be applicable were this an attempt solely to enforce the contract by either of the parties to it. In the latter case it is quite clear that if it were conceded that the parties signed the indorsement upon the back of the option to take •effect as a contract, then its construction would become a question of law for the court to determine, and such construction would determine the rights and liabilities of the parties. But here the conceded fact is the one in issue, and the question to be determined. The court did not submit to the jury in its charge the question of construction of this contract as determining the rights and liabilities of the respective parties thereto. It submitted it as a piece of ■evidence 'in connection with the other evidence in the case, for the jury to determine whether the minds of the parties had met upon any contract at all, enforceable or otherwise. The effect of the court’s charge was that, if the parties had agreed, no matter how ■obscure or indefinite the terms of the contract were, plaintiff was entitled to recover. It is always competent to show by parol testimony that what appears to be a contract 'is not in fact a contract. Grierson v. Mason, 50 N. Y. 394; Thomas v. Scutt, 127 N. Y. 138, 27 K. E. 961. And no reason suggests itself why the contract may not be used for the same purpose if its language tends to its establishment. In the present case the contract is indefinite in its release clause and provision for the mortgage, and its final •statement is, “Details to be settled later, in conformity to above understanding.” The indorsement did not render in the least degree
Counsel complains that the court assumed that it devolved upon the plaintiff to show that a complete and perfect contract of sale was entered into, and, if accepted and signed when it was not complete, that would prevent the plaintiff from recovering any compensation. I do not so read the charge. On the contrary, the court expressly stated that plaintiff was entitled to recover if he brought the parties together, the owner ready to sell, and the purchaser ready to buy at the owner’s terms. This was nowhere modified or qualified, and, while the court speaks of a completed sale or contract of sale, it was with respect to the claims of the parties regarding the writing, and not in denial of the right of recovery, if plaintiff produced an agreement of mind. I am therefore of the opinion that the court committed no error in the submission of the case to the jury respecting the agreement of sale. But I am of opinion that the court committed an error respecting the admission of testimony as to other negotiations between other parties respecting a sale of the property after the execution of the agreement sued upon. It appears from the evidence that plaintiff did not waive his right to compensation for services rendered by him as agent, as there is no sufficient evidence upon which such claim could be based. Bach v. Emerich, 35 N. Y. Super. Ct. 548. Plaintiff’s right to recover depended upon the facts attending upon the transactions between the parties to the writing, consequently the evidence of subsequent negotiations between different parties was entirely irrelevant, tended to divert the minds of the jury from the main issue, and inject into the trial an entirely irrelevant one, which might prejudice the minds of the jury to plaintiff’s detriment. This ruling cannot be sustained as tending to show difficulty in agreeing upon details of purchase and showing indefiniteness in the writing. A large part related to the gold clause, in which there was no indefiniteness at all. As we have seen, difficulties attending construction or agreement in detail would not defeat plaintiff’s right. Were the parties agreed? was the question, not what they agreed on. What other parties did in trying to arrange details sheds no light upon that. One party might agree without difficulty, where another would find it impossible. This evidence was improperly re