27 N.Y.S. 372 | New York Court of Common Pleas | 1894
According to the testimony of the plaintiff, he was employed by the defendant about October 1, 1890, to sell her property on Lenox avenue, between 113th and 114th streets, for a
“I, James McComb, in consideration of Mathilda Von Ellert executing a contract for sale of premises on Lenox Ave., bet. 113 and 114 Sts., N. Y., do hereby agree to neither claim or demand commission for procuring such sale until the title to such premises be closed and deed delivered. Upon such title closing or deed delivered 1 am to receive one per cent, upon the amount the premises are sold for.
“N. Y., Oct. 9, 1890. J. McComb.”
The commissions were not paid, and this action was commenced in June, 1891, to recover them. The defendant’s evidence was that the plaintiff was employed to find a purchaser upon the condition that he was to receive no commission unless the sale was consummated; there being two mortgages on the property,—one of $175,-000, covering it and other lots of defendant; and another of $222,000, covering both of those parcels, "and also land belonging to a third party,—and there being an apprehension of difficulty in obtaining the consent of the mortgagee to an apportionment; and it was claimed that the plaintiff’s agreement of October 9th expressed the terms of his arrangement as to commissions, and that, as the purchaser declined to complete the sale, no commissions were earned. The plaintiff denied the arrangement that his commissions were to be contingent upon the consummation of the sale, and an issue of fact was thus presented which it was the province of the jury to determine. If the plaintiff’s version of the case was correct, he had earned his commissions when he produced a purchaser ready and willing to enter into a contract upon the terms stipulated by the defendant, and a subsequent agreement not to claim or demand commissions was without consideration, and could not affect the defendant’s obligation to pay them. Little v. Rees, (Minn.) 26 N. W. 7. The recital in the writing that it was in consideration of defendant executing the contract of sale does not establish a valid consideration, for that was the contract which plaintiff was employed to procure, and, being the consideration for his commissions, it could not be consideration for a waiver of them. It is not necessary to consider how plaintiff’s rights might be affected by the fact that the time fixed by the writing for the payment of the commission—i. e. the delivery of the deed—never arrived, for the agreement was invalid even as an extension of the time of payment. The writing would be admissible in evidence upon the issue whether