33 N.Y.S. 310 | N.Y. Sup. Ct. | 1895
The complaint alleges, in substance, that the defendant, being desirous of selling his business, agreed with the plaintiffs and one Samuel S. Smoot that, if they would procure for him a purchaser at a satisfactory price, he would pay them $100,000 for their services; that the plaintiffs and Smoot 'did procure a purchaser, to whom defendant made a sale; that the defendant settled with Smoot, and paid to him $15,000 for his commissions, who released the defendant from any further indebtedness to him on account of the commissions agreed to be paid. These allegations are denied by the answer. On the trial the plaintiffs presented testimony tending to establish the contract alleged in the complaint, although some portions of it would permit a finding that a different contract was made than that alleged in the complaint; but with the different inferences of fact as to the contract, permitted by the evidence, we have no present concern.
The testimony being closed, counsel for defendant moved for a direction of a verdict in favor of the defendant upon the whole case, specifying several grounds. The trial court refused to consider any of the grounds of the motion, save one, which was that Mr. Smoot, one of the parties in interest with the plaintiffs, had been paid $15,000 for commissions, and had released the defendant from all obligations to him under the contract, which had the legal effect to discharge the defendant from all liability thereunder to these plaintiffs, as well as Smoot; and on that ground he directed a verdict in favor of the defendant. In support of this ruling the respondent cites the following cases: Pierson v. Hooker, 3 Johns. 68; Austin v. Hall, 13 Johns. 286; Fitch v. Forman, 14 Johns. 172; Bulkley v. Dayton, 14 Johns. 386; Wheeler v. Curtis, 11 Wend. 652;
The respondent urges that, should it be held that the ground upon which the trial court directed a verdict in favor of the defendant was not tenable, still the judgment should be affirmed if, upon the whole case, it should appear that the defendant was entitled to a direction of a verdict. Without considering that proposition, we proceed to a brief consideration of the other grounds upon wffiich, in part, the motion was based.
It is claimed that the evidence shows that the employment of the plaintiffs and Smoot was to sell the property for $1,350,000, in which event the plaintiffs were to have $100,000 for their services; that in any event, by the terms of the contract, the property was to net the defendant, over and above all payments for brokerage or otherwise, the sum of $1,250,000; and that no such sale was effected. It is undisputed that, in all the conversations had between the defendant and the plaintiffs or Smoot, the defendant insisted that the price • he should receive should be $1,250,000, net. But some of the plaintiffs testified that the agreement with the defendant was that they should find him a purchaser, and that the price should be $1,350,000, $100,000 of which should be paid to the plaintiffs and Smoot, leaving to him the sum which he desired to obtain for his property. Their position was that, together with Smoot, they found lim a purchaser, but that, in violation of his arrangement with them, the defendant only asked and received $1,250,000, by reason whereof they became entitled to the commissions agreed upon. Against their position, wmich suffers embarrassment from contradictory statements on the part of one or more of the plaintiffs, is the significant fact that the negotiations with the brokers in London who acted for the real purchasers seem to have been conducted in behalf of the plaintiffs by their associate Smoot,
The further point is made that, Smoot having finally accepted a commission from the purchasers, the plaintiffs cannot recover a commission from the seller, even though the contract with the defendant was as claimed by them. That plaintiffs did have an understanding with their associate Smoot that they were to receive some shares of stock from the purchasers, in the event of the consummation. of the sale, is made clear by Fisher’s testimony; and, were there no evidence that such expectations on the part of the plaintiffs were understood by the defendant Bliss at about the time of the making of the alleged contract between defendant and these plaintiffs with their associate Smoot, defendant’s point would be well taken. Employment of a broker by an owner of property is to effect a sale on terms most advantageous to his employer. This the broker cannot do, and at the same time render similar services to the party to whom he attempts to sell the property. It is impossible for the broker to negotiate for the benefit of both, for, if he gets a good price for the property sold, it is obtained from the man who buys, and, if the man who buys secures a good bargain, it is