179 A.D. 699 | N.Y. App. Div. | 1917
The plaintiff alleges that he was employed by the defendant on or about the 22d of April, 1913, as a broker to procure a
The premises were owned by the “West 82nd St. Realty Co.,” which was incorporated on the 7th day of February, 1911, and of which defendant was the president and the owner of forty-eight of the fifty shares of its capital stock, his wife and brother each owning one of the others. It appears that title to the premises was first taken by the defendant individually and that he thereafter conveyed to the corporation, but it does not appear either when he acquired title or when he conveyed to the company otherwise than that at all the times in question the title was in the company. The plaintiff testified that when the negotiations were opened between him and the defendant he was not aware that the premises were owned by the corporation, but that during the progress of the negotiations and before he had obtained a customer ready, willing and able to purchase, and on the 24th of November, 1913, he became aware of the fact that the title was in the company from seeing a newspaper announcement that a receiver had been appointed for the company and that it owned the premises. The plaintiff testified that his attention was drawn to the purchase of the premises by the defendant and that he had an interview with the defendant at the premises in the month of August, 1912, at which he suggested that if the defendant would build a good house on the premises he could sell it for him and that he had in mind a responsible purchaser, naming one Noakes, to whom the defendant had previously through the plaintiff offered another apartment house, and that defendant replied that he would build a good house; that on the 22d of April, 1913, when the apartment building was in process of erection he had another interview with the defendant who then suggested that he bring Noakes up to, see the building and that at his request the defendant
Under the charge the verdict could not in any event be sustained for more than $5,000, for the court instructed the jury that if they believed that the contract was made as claimed by the plaintiff, and that at the last moment before it was signed he agreed to a reduction of his commission to
On the part of the defendant evidence was given tending to show that the company was unable to effect a settlement with its creditors on the basis of the contract and that the demands of the creditors were such that they could be met by the cash payment to be made by Noakes under the contract. The plaintiff now claims and evidently claimed on the trial that his commission was earned when the defendant yielded to Noakes’ terms, and that he was not bound by the provisions of the contract making performance conditional upon the company’s ability to obtain the consent of the creditors to the composition which it was to offer them. Manifestly, that contention is unsound for when the plaintiff according to his own testimony learned that the company owned the property and that its affairs were in the hands of a receiver and that the property could not be sold without the consent of the creditors he had not obtained a purchaser and, therefore, had not earned a commission. The services he subsequently performed were in negotiating a sale of the premises by the corporation which he knew would depend upon obtaining the consent of the creditors. Of course it was competent for the defendant to obligate himself to pay the plaintiff’s commission, but if that was the effect of the original employment it was, in effect, modified by mutual consent and in the circumstances the commission would not be earned upon the signing of the contract but only upon performance thereof unless failure of performance was owing to the fault of the defendant which is not shown by the mere fact that the contract was canceled for a consideration paid to Noakes. That was an important point in the case and while perhaps it became a question of fact on the theory that it may not be said that the evidence adduced in behalf of the defendant conclusively established the inability of the corporation to perform the contract yet the case was not so submitted to the jury that it follows from their verdict that they passed upon this question of fact adversely to the defendant. On the contrary, the court appears to have left it to the jury to say as a question of fact whether or not the
It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Scott, Smith, Page and Davis, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.