224 A.D. 463 | N.Y. App. Div. | 1928
The action in the Municipal Court was to recover a broker’s commission. The defense, that the brokerage should only be paid provided the title to the premises was closed or a survey of the premises was satisfactory to the purchaser; that the survey was unsatisfactory; that title was rejected; that the defendants returned the deposit to the purchaser and canceled the contract. At the first trial in the Municipal Court oral evidence was introduced, showing in full the transaction between the parties leading up to the agreement with the brokers, which read as foUows:
“ New York, March 17th, 1925.
“ Walter A. Forster, Esq.,
“ John C. Foster, Esq.
“ Gentlemen.— We hereby agree to accept from you as brokerage commission on the sale of premises 447-453 West 38th Street, New York City to The Stars and Stripes Realty Co., Inc., the sum of One thousand ($1,000) Dollars in full of all commissions. Said sum to be paid us when the title to the premises is closed, except that if the purchaser shall notify the seller that the survey is satisfactory to the purchaser, then said commission of One thousand Dollars ($1,000) shall be due and payable.
. “ HARRY LEVY
“ SAMUEL J. WISHNER.”
The jury found for the defendants. Upon appeal to the Appellate Term, that court reversed the judgment because of an error in the charge of the trial court to the jury and sent the case back for a
The ambiguity of the writing in the case at bar lies in the fact that construed in the light of the circumstances surrounding the making of the agreement, in the language “ said sum to be paid us when the title to the premises is closed,” the word “ when ” may have been used in the sense of “ if.” Webster’s Dictionary, defining “ when,” among other things, says: “ akin to if.” If this was the sense in which the parties to the agreement used the word “ when,” then the commission was payable only upon a contingency which never happened. The agreement between the brokers and the seller further goes on to provide “ except that if the purchaser shall notify the seller that the survey is satisfactory to the purchaser, then said commission of One thousand Dollars ($1,000) shall be due and payable.” The undisputed proof produced at the trial showed that the sellers were not notified that the survey was satisfactory to the-buyers. Oral and written evidence concerning the agreement made between the parties was thus properly before the jury. The cases, therefore, holding that the cancellation of a contract between seller and "purchaser produced by brokers owing to inability of the seller to give good title, does not defeat the broker’s right to his commission, are not in point, since it is always permissible for the parties to vary this rule to any extent. (Colvin v. Post Mortgage & Land Co., 225 N. Y. 510.) The second jury having found, as did the first jury, that the agreement was as contended for by the defendants, namely, that a commission should be payable only if and when the title closed unless the sellers were notified by the purchasers that the survey was satisfactory, and it being the uncontradicted proof that the buyers did not notify the sellers that the survey was satisfactory, and the title not having been closed, the jury were justified in finding for the defendants. The verdict is not against the weight of the evidence.
It follows that the determination of the Appellate Term reversing
Dowling, P. J., McAvoy, Martin and Proskauer, JJ., concur.
Determination of the Appellate Term reversed and judgment of the Municipal Court affirmed, with costs and disbursements to the appellants in this court and in the Appellate Term.