47 Misc. 394 | N.Y. App. Term. | 1905
Lead Opinion
The facts in this case are undisputed. The defendants had entered into a contract for the purchase of certain real estate, situated in this city, from one Schoner. After the contract was executed the defendants employed the plaintiffs, who were real estate brokers, to sell the contract, and agreed to pay plaintiffs all over the sum of $1,000 that
At the close of the plaintiffs’ testimony the court, upon motion of the defendants’ attorney, rendered a judgment in favor of the defendants upon the ground that the plaintiffs, not having written authority to sell real estate, came within the inhibition of section 640d of the Penal Code, chapter 128, Laws of 1901, and were thereby precluded from recovering. This was error. That statute is penal in its nature and must be strictly construed. Gay v. Seibold, 97 N. Y. 472. Mo intent of the Legislature can be read into its provisions and its language must be given such meaning only as is plainly and clearly expressed thereby; “its provisions are aimed at irresponsible brokers who would constitute themselves agents by their own fiat, and then, whether successful or not, seek to fasten liability on the owners of property for commissions on abortive sales.” Imperato v. Wasboe, 47 Misc. Rep. 150. It refers to sales of real property only, and was not intended to cover every transaction having relation to real estate. Although the witnesses, in.
Truax, J., concurs.
Concurrence Opinion
(concurring). I concur with Mr. Justice Bowling that the contract testified to by the plaintiffs may be construed as an employment to sell a contract for the purchase of real esate, and not to sell the real estate itself, and that it is for that reason not obnoxious to chapter 128, Laws of 1901. It follows that the judgment must be reversed since the justice expressly based his judgment for defendants upon the ground that the statute referred to applied to the agreement between the parties. A's there must be a new trial it may not be amiss to point out some reasons why, under the present pleadings and evidence, it might be found difficult to sustain a judgment for the plaintiffs. The summons, oral complaint and bill of particulars all lend color to the belief that plaintiffs supposed that they were employed to sell the real estate itself, and were entitled to full commission on the purchase price of the real estate. The evidence is to the effect that defendants, having obtained a contract for the sale to them of certain real estate, authorized plaintiffs to sell that contract and fixed the sum of $1,000 as the price at which they were willing to sell. Assuming that this was the agreement, and that plaintiffs did procure a purchaser who was willing to pay $1,000 for defendants’ contract (and it is only upon this assumption that plaintiffs can recover at all) the plaintiffs’ commission should be calculated upon the price at which the defendants were to sell the contract and not upon the price to be received by the original vendor in the contract with defendants. According to the plaintiffs’ testimony, however, they were not to be compensated by the payment of a commission calculated upon a percentage basis, but were to receive all that they could realize upon the. sale of the contract over $1,000. If they sold it for no more than $1,000 they would be entitled to receive nothing. By employing plaintiffs to sell the contract the defendants did not debar themselves from selling it themselves if opportunity offered. So long as
Judgment reversed and new trial ordered, with costs to appellants to abide event-.