95 N.Y.S. 284 | N.Y. App. Div. | 1905
The appeal is from a judgment dismissing the complaint upon the merits at the close of the plaintiff’s case. The Case was not.su bmitted to the learned-trial court for a decision upon the 'merits, and as it was tried before the court and a jury it should have been submitted to. the jury for determination unless the plaintiff’s proof entirely failed, in which event a nonsuit should have been granted.
There was evidence requiring submission of the case to the jury.'
The evidence given at the trial was sufficient to establish the following facts: On Saturday, March 21, 1903, the plaintiff procured a responsible purchaser who was ready to sign a contract to buy the property for $39,000, to pay $1,000 in cash that day, and to close the contract in sixty days by paying $13,000 then and giving a purchase-money mortgage for $25,000 at five per .cent for three years. The prospective purchaser and the parties met and the terms were stated, but the defendant objected to the delay in closing the contract, saying that it must be done before the first of May. He made no other objection to the terms. The proposed purchaser was unwilling to close the purchase by May first, and the deal fell through. The plaintiff stated that he would procure another purchaser, and the defendant told him to deal with his lawyer who would attend to the matter for him. He did procure another responsible purchaser on that day at the same price and conditions,, but who was ready and willing to close the sale in thirty days, and he informed the defendant’s lawyer of the fact over the telephone. He testified : “ I said, ‘ Mr. Kiendl, I have another party; I have procured another party who will close up the sale in thirty days.’ I said, 1 Will you close it on Monday morning at half-past ten ? ’ He said,1 Yes.’ I asked him, ‘ Will yon draw the contract up ?’ He
The evidence was sufficient to justify the jury in concluding that the defendant was originally content with a payment on account of $1,000, and in the absence of a claim that either purchaser was irresponsible they might also have reasonably concluded that the defendant’s change of mind was capricious, or influenced by the belief that his property would find á ready sale at the sum of' $39,000, and that he could by refusing the plaintiff’s customers save the $2,000 which the plaintiff would otherwise receive. It is true that there was some evidence tending to show that the defendant had all along demanded $5,000 as the initial payment, but its weight and' credibility were for the jury and not for the court. I do not think a nonsuit could be sustained upon the proof, but it is clear that the action of the trial court in destroying the plaintiff’s cause of action by a judgment against him on the merits was wholly unwarranted. The case is not different in ' principle from what it would have been had the plaintiff engaged to find a third purchaser on the new terms, and had he on doing so been told that the defendant would require payment of all the purchase money exclusive of the mortgage on the signing of the contract. The production of a responsible purchaser on terms which are satisfactory to the employer at the time the contract of brokerage is entered into is sufficient to entitle the broker to his commissions, and he cannot be deprived of his right to them by a mere change of mind on the part of the vendor. (Moses v. Bierling, 81 N. Y.-
The judgment should be reversed.
Bartlett, Woodward and Rich, JJ., concurred; Jenks, J., concurred in result.
Judgment of the County Court of Kings county reversed and new trial ordered, costs to abide the event.