28 N.Y.S. 704 | The Superior Court of the City of New York and Buffalo | 1894
The defendant was interested in two farms in the vicinity of the city of Buffalo, as agent for the owners, from some time in 1888 until April 9, 1890. In 1888 the plaintiff secured from the defendant the right to purchase these farms by paying the sum of $400 for the privilege. He was unable to complete the purchase, and forfeited the $400. At about the time he lost the privilege of purchasing the farms, or soon thereafter, the defendant said to the plaintiff that if, at any time thereafter, he would secure a purchaser for these lands, the defendant would divide commissions with him. Thereafter, and in April, 1890, one Zink called upon the plaintiff to inquire concerning these lands; and it was thereupon agreed between them that, if the lands could be purchased at a figure which they should consider advantageous, they would purchase them on joint account, and take the title to Zink. The plaintiff and Zink then secured contracts for the purchase of the lands in the name of Zink, and immediately thereafter, by a written contract between themselves, defined the interest which each should have in the profits of the lands, when sold, and the proportions of the purchase money to be paid by each. The fact that the purchase was made on their joint account was known to the defendant, and he was invited to take an interest with them in the purchase. Such, in substance, are the facts, as the jury found them by their own verdict. Nothing was said about commissions at the time, or with special reference to the purchase by the plaintiff and Zink. The plaintiff’s claim is that by this contract of sale he found a purchaser for these lands,
HATCH, J., concurs.
Giving plaintiff, as entitled, the most favorable view of the evidence, this recovery cannot be sustained. Some time in the year 1888, defendant stated to plaintiff that if he, at any time, brought him a purchaser for certain lands which defendant then had for sale as agent of other parties, he would divide commissions. In April of that year, plaintiff procured an optional contract of purchase of the lands, running 60 days, for which he paid $400, and forfeited the contract. About March 25, 1890, plaintiff states that one Zink made inquiry of him about land in the locality where this land lay, that he gave him information respecting the land, and was asked by Zink to see defendant, which he did, informed him that he had a customer for the land, obtained the price, and stated that he would bring the customer in. Having reported the information to Zink, and the latter inclining to a favorable view of the proposition, plaintiff took him to defendant, with the result that an agreement of purchase was reached, which was finally consummated and carried out. Thereafter, plaintiff demanded payment of commissions, which was refused. This statement is quite as strong as plaintiff’s testimony, on his direct examination, made the case, and it is quite clear that, if this were all there was of the transaction," he made out a case authorizing the jury 'to award one-half commissions, even though nothing further had been said, beyond the general conversation respecting them. But his further examination, and that of other undisputed testimony in the case, established that during the negotiations, and before any contract of sale was made, either verbal or written, plaintiff, by agreement with Zink, became a part purchaser of the premises, and offered inducements to defendant to join them therein, which was declined. The contracts of sale were taken in the name of Zink, and on the same day a contract was drawn, and executed by the latter and plaintiff, referring to the contracts, and specifying plaintiff’s obligation with respect thereto, and his interest therein. The case, as thus made, presented plaintiff in the attitude of a purchaser for the benefit of himself and Zink; and, as such, defendant dealt with them as agent of his principals. Nothing was said about commissions in connection with this sale. The position of purchaser was therefore inconsistent with any agency created by the general conversation had two years prior thereto, and could create no liability against defendant, in the absence of a clear understanding by the parties of the dual relation which plaintiff now claims existed. When plaintiff appeared as purchaser, he occupied an entirely different attitude from that of agent for defendant. He then acted for himself; and, without an express agreement that he should receive commissions for such sale, he could not recover them. It would be quite too loose a construction of the evidence and circumstances attending the transaction to hold
WHITE, J„ concurs.