Goodman v. Margolies

159 N.Y.S. 834 | N.Y. App. Term. | 1916

GUY, J.

The complaint alleges that the plaintiffs at the request of the defendants, and in consideration of the payment of $165, agreed to procure a purchaser of defendants’ restaurant business in this city, that the plaintiffs procured a purchaser of said business and performed all the conditions of tlieir agreement with defendants, hut that the defendants failed to pay the agreed compensation.

It appeared that plaintiffs introduced to defendants one Kromberg, and that after a conference he made an agreement in writing with the defendants to purchase the business on the terms stated therein and paid a deposit of $150. On the cross-examination of the plaintiff Goodman he was asked how many times the parties met after the making of the contract at the office of the lawyer who drew the agreement. This question was objected to, but the objection was overruled, and plaintiffs’ counsel then moved to amend the complaint, so as to allege that plaintiffs brought a customer ready, able, and willing to purchase, whereupon the court said:

“You agreed to procure a purchaser. You were employed to get a purchaser. You did not get a purchaser, because nobody purchased.”

And the motion to amend was granted. It further appeared, however, that at the time set for the closing of the contract, on a Saturday evening, Kromberg did not have all the money, and defendants would not take a check; that Kromberg said he had money in Jarmalowsky’s bank, and he said that Jarmalowslcy did not pay out any money on Saturday night, but if defendants would go to Jarmalowsky he would put his money in their name; and one of the defendants then said, “I do not want anything,” and he went away, and defendants afterwards paid the deposit back to Kromberg. The attorney who drew the agreement of sale testified that at the time set for completion one of the defendants was satisfied to take Kromberg’s check and to have all the papers deposited with the attorney, and to go to the landlord the following Monday and get his consent to accept Kromberg, but that the other defendant was not satisfied; that then conversation drifted into taking back a mortgage for part of the purchase price, and the parties left the office.

At the close of the plaintiffs’ case, defendants moved to dismiss, and the court granted the motion, saying:

“Your complaint now is that you produced a man ready, able, and willing to buy that store upon the terms agreed on, and he was not ready, able, and willing. He was not ready.”

[1,2] The court was in error in the first place in stating that the plaintiffs did not get a purchaser, for under the written agreement Kromberg was a purchaser within the meaning of the contract made by defendiutis with the brokers, and on the production of the written agreement hey established a prima facie case; so that it was altogether tei>ice>,ssai,y for the plaintiffs, acting on the intimation of the court, !,o move V> amend their complaint by setting up that they had procured a purchaser ready, able, and willing to purchase the property. Thai the purchase.1 in this case was not ready to pay cash at the (hue appointed for the closing, or for some other reason the contract of sale went oft, did not concern the plaintiffs, for they had pci ixirmed their agreement in procuring the purchaser, and if he breached his contract he was responsible for such breach to the defendants.

“Where the contract of sale is executed between the employer and the purchaser, the right of the broker to his commissions does not depend upon the performance of the contract by the purchaser. If from a defect in the title of the vendor, or from a refusal to consummate the contract on the part of the purchaser, for any reason in no way attributable to the broker, the sale falls through, nevertheless the broker is entitled to his commissions, for the simple reason that he has performed his contract.” Gilder v. Davis et al., 137 N. Y. 504, at page 506, 33 N. E. 599, at page 600 (20 L. R. A. 398).

It follows that the judgment must be reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur.