125 N.Y.S. 527 | N.Y. App. Div. | 1910
The judgmént and order should be reversed and a new trial granted, with costs to the appellant to abide event.
The action was brought to recover commissions as a broker in procuring a purchaser for defendant’s farm of 223 acres.
The selling price was $60 per acre, $13,380 in all, and the commission five per cent. The proposed purchaser was one Ward. A parol agreement was made between the parties. The controversy was over the terms of this agreement. Plaintiff claimed that Ward was to pay $2,000 down in cash, and transfer to defendant a third mortgage on another farm for $2,000 if she found on inquiry that it was good in further payment, and to take a purchase-money mortgage for the balance, $9,380, and if she did not take the $2,000 mortgage this additional amount should go into the purchase-
The court charged the jury that if the plaintiff’s version of the agreement to the sale of the farm was correct he could recover, but if the defendant’s version was correct he could not recover.
I am not satisfied that the finding of the jury was correct. They had undoubtedly a right to come to the conclusion they did, but it was rather an unreasonable claim that the defendant would sell a large farm for $13,380, and get only $2,000 down payment. We would not ordinarily expect a jury to determine the question that way in order to permit a recovery by a land broker against a woman, the wife of a country farmer. Very likely the case is not one where we should set aside the verdict as against the evidence, Under the rules applicable to such questions, but we may at least require the trial to be free from legal errors likely to produce such a verdict.
The parties went to Lawyer Prescott’s office to have the papers drawn to consummate the sale. Prescott heard the parties discuss the agreement and their respective claims with reference thereto. The plaintiff, while under examination as a witness, was allowed to testify that Lawyer Prescott said to plaintiff during the talk in his office, after hearing the parties talk their differences over, “ Sue this woman [defendant]. You can recover.” This was under defendant’s objection and exception.
There was also a motion made to strike it out after it was taken, and the motion was denied with exception.
Prescott was, we may assume, a lawyer of good standing and
I think, moreover, that the court should have granted the motion for a new trial upon the ground of newly-discovered evidence. The evidence related to statements made by the plaintiff and Ward (soon after the meeting in Prescott’s office) to the effect that the reason why the sale fell through was that Ward could not pay down the amount that he had agreed to pay, because .of his failure to cash the third mortgage. I need not go into détails. The case was a close one; this evidence went directly to the question.at issue, submitted to the jury, and we cannot say that it would not result upon the new trial in a verdict for the defendant.
The question of the credibility of the new witnesses should not be determined on this motion, but left to the jury on the new trial.
For these various reasons there should a reversal here and a new trial.
All concurred, except Spring, J., who dissented.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.