60 A.D. 557 | N.Y. App. Div. | 1901
This action was brought to recover broker’s commissions upon the sale of certain property described in the complaint and belonging to the defendant. There is no substantial dispute that the plaintiff entered into a contract with the defendant in respect to a sale of this property, and it is agreed that the amount of the compensation was to be one per cent upon the amount of the purchase price of the property, which was to be $150,00.0. The plaintiff claims that the sum was due and payable upon his having brought a customer to the defendant who was willing to purchase the property under the terms and conditions mentioned by the defendant in a certain letter,
The defendant’s theory of the case was that the contract between plaintiff and defendant was that the plaintiff should be plaid his commissions in installments, $1,000 upon the purchaser taking title, another $1,000 upon the building (to be constructed under the provisons of a building loan) reaching a certain stage of completion, and so on until the entire sum had been paid. Wagner never complied with the terms proposed by the defendant, among which was the production of a bond of a surety company for $25,000 that hé would comply with the provisions of the building loan, and the property was subsequently sold to Halter, though not under the provisions of the so-called contract which the latter had purchased from Wagner, the defendant having distinctly repudiated that proposition as having any binding force as a contract. There was a conflict of evidence upon the issue thus raised. The rule is well established in this State that where there is evidence to support the determination of the court the finding of fact is conclusive; but if the rule were otherwise, we should have no difficulty, upon a reading of the evidence, in concurring in the decision of Mr. Justice Gayitob at Special Term, in which he says : “ I do not think the commission was earned. It was not an undertaking on the part of the broker to get a purchaser to take the property and pay the money, it was more than that; he was to get someone to erect a large building, and for Mr. McOreery to make a builder's loan for that purpose. That contract was never made. It could not be until
The judgment appealed from should be affirmed, -with Costs.
All concurred.
Judgment affirmed, with costs.