110 N.Y.S. 855 | N.Y. App. Div. | 1908
Lead Opinion
The plaintiff entered into a written contract with the defendant to procure a purchaser for defendant’s premises, and this action is
We think the fair reading of the contract does not make the actual closing of the title a condition precedent to the right of the plaintiff to his commission. The defendant agreed that he would sell -for a given sum, the plaintiff to have all above that figure. One hundred and fifty dollars was to be paid on the sighing of the contract, and the balance “ at the closing of title.” This merely fixed the time of payment, the sum due. being fixed by the terms of the agreement, and when the parties entered into a valid contract to close title on the 15th day of March, 1907, they fixed the time when the plaintiff was entitled to his compensation. The mere fact that by reason of the defendant’s defective title he is unable to complete his contract at that time does not operate to postpone the plaintiff’s right to payment. He had agreed with the plaintiff that he would sell for $12,850, and, as against the plaintiff, he is estopped to say that he did not have title. He has agreed with the purchaser to take $13,500 and to pass title on the fifteenth day of March, and he has no right, because of his own wrong — or own .
The judgment appealed ’from should be affirmed.
Jerks, Gayhor and Miller; JJ., concurred; Hooker, J., read for reversal.
Dissenting Opinion
■ The contract between the parties is not ambiguous, and they meant just what they said with reference to the time when the commissions were to be paid. That was “ at the closing of the title,” not on the day when the parties agreed to close title. This action was prematurely brought, and without proof that the seller unnecessarily delayed closing the title, of which there is none, there can be no recovery until that event transpires.
The judgment should be reversed.
Judgment of the Municipal Court affirmed, with costs.