183 A.D. 6 | N.Y. App. Div. | 1918
Lead Opinion
The record in this case is voluminous, and the amounts involved are very large, but the legal principles involved are comparatively simple. The plaintiff seeks to recover commissions as a broker under employment by the defendant; he alleges that he has performed his part of the contract and demands payment. Naturally the questions involved are, What was the plaintiff’s contract? Was it performed and is he entitled to payment? The case comes to this court without findings of fact or conclusions of law by the learned trial judge. Originally, a jury was impaneled and the trial was commenced, but, on the second day, the counsel for both parties called the attention of the trial justice in chambers to an attempt made to tamper with the jury and to bring about a verdict in favor of one of the litigants by bribery. The facts of this transaction are before this court in the case of People v. Bennett (182 App. Div. 871), in which it appears that the defendant Bennett was convicted and sent to State prison for his activities in the matter. The attention of the learned trial justice having been called to the circumstances, it was agreed that the jury be discharged, that a jury be
We are constrained to differ with the learned trial justice in his interpretation of the contract between the parties. We think the plain intent of the written letters evidencing the agreement, prepared by the plaintiff, an attorney at law, is that he was not entitled to commissions unless the contract with the Russian government was executed, that is, performed, and not then unless the defendant actually received the money payable to it upon performance. This in our opinion is the plain wording of the written contract, and this interpretation is confirmed by all of the evidence in the case. In an ordinary real estate transaction, a broker performs his work when he brings the vendor and the purchaser together, and he does not assume the risk of performance. His work is done when he introduces a willing purchaser to the vendor, and the contract is made.. The broker does not assume responsibility for the vendor’s title or the purchaser’s responsibility. And it is also true that in the ordinary case where a broker stipulates that his commission shall not. be payable until the closing day, such agreement does not discharge the principal from the obligation to close the contract in a reasonable time, or if the broker stipulates that his commission shall be paid out of the proceeds of the transaction, the principal cannot defeat recovery by failure on his part to perform his own obligations. These are elementary rules and founded on elementary principles of fair dealing. But no one will dispute the proposition that a broker may make any legitimate agreement as to his services and payment therefor which may suit the transaction and accord with the desires of all concerned. A broker may bind himself not to demand payment unless the .contract is actually carried out. He may, if he sees fit, agree that he shall have no claim for commissions unless his principal actually receives the fund from which the broker’s compensation is made payable. Such agreements are lawful and proper and not unusual. Even
The judgment and order should be reversed, and a new trial granted, costs to abide the event. This court reverses the verdict and findings of the Trial Term as contrary to the evidence and contrary to law, and particularly the finding of the trial justice so far as the same is involved in the verdict, that it was the intention of the parties that the plaintiff was entitled to payment of commissions upon the signing of the contract between the Imperial Russian government and the defendant, or upon the signing or acceptance of the option on the stock of the Savage Arms Company, and the finding that failure of performance was due to any act or default on the part of defendant.
Jenks, P. J., and Putnam, J., concurred; Blackmar, J., concurred in result; Thomas, J., read for affirmance.
Dissenting Opinion
Three men, named Bradley, owned the stock of the defendant. In the early summer of 1915 the Bradleys considered the manufacture and sale of munitions to the Russian government. For such purpose they had not plant, 'facilities, knowledge, expert skill or sufficient usable capital. They were experienced in enterprises of much importance, largely in the direction of construction work, for which they were adequate in knowledge, appliances and resources. But they entered resolutely upon this new enterprise, so foreign to their education and to the charter of the company, later amended for such an undertaking. They had no contract with the Russian government, and plaintiff presented himself as a person able to procure it. He was the son of a partner in the firm of Coudert Brothers, counsel to the Russian commission come to this country to obtain such munitions. Its head was General Sapojnikoff. Mr. Murray of the law firm was in immediate relation to the affairs in question.
I conclude that the judgment should be affirmed, with costs.
Judgment and order reversed and new trial granted, costs to abide the event. This court reverses the verdict and findings of the Trial Term as contrary to the evidence and contrary to law, and particularly the finding of the trial justice so far