199 A.D. 119 | N.Y. App. Div. | 1921
On March 15, 1920, the defendant entered into a written contract with the plaintiffs whereby they were to undertake the sale of the defendant’s farm. The contract, known as the listing contract, mentioned the farm as containing 150 acres. The defendant agreed to give possession March 1, 1921, nearly one year after the contract was made. The terms on which the farm was to be sold were, so far as stated, as follows: “ Best terms $4000 down balance at 6%. Lowest cash price $80 per acre.” The contract concludes as follows:
It may be that under the provisions of the listing contract above quoted the defendant was at liberty to change his mind and refuse to sell his farm without liability to the plaintiffs for their commissions even after they had procured a purchaser. The contract seems to contemplate commissions only in case “ sale is made ” and it is provided that the defendant may withdraw from the contract “ at any time.” We need not, however, determine this question because for reasons hereafter stated this judgment cannot be sustained.
It has been held that commissions on the sale of real estate are not earned until the minds of the buyer and seller meet,' not only in respect to the price, but also in respect to the terms of the sale and all the incidents of the transaction which must be worked out and understood between them. (Strout Farm Agency, Inc., v. DeForest, 192 App. Div. 790; Haase v. Schneider, 112 id. 336; Arnold v. Schmeidler, 144 id. 420, 427; Peace v. Ross, 123 id. 611; Backer v. Ratkowsky, 137 id. 559.) In Haase v. Schneider (supra) commissions were refused merely because the parties had not agreed on the time when the transaction was to be closed, the seller insisting on eleven days and the purchaser on thirty. Applying the principle of those cases to the present case it seems quite clear that the plaintiffs have failed to establish a cause of action.
The contract of the defendant with the plaintiffs specifically provided that the defendant might cancel the contract at any
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
John M. Kellogg, P. J., Woodward, H. T. Kellogg and Van Kirk, JJ., concur.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.