68 N.Y.S. 32 | N.Y. App. Div. | 1901
. The action is brought on an assigned claim of one Fred E. Wilcox for commissions as a real estate agent. It was shown upon the trial that one Reynolds, while acting as general manager of the defendant, under a resolution of its board of directors designating him as such and fixing his salary at $3,000 per annum, employed Clarence Perrine as an agent of the company at a salary of $25 per week to collect rents, look after and make recommendations concerning the use, sale or other disposition of the real property owned by defendant situate in Rochester, Watertown and Buffalo, and which it had acquired principally on foreclosures. After Perrine had worked
“ Genesee National Savings & Loan Association
“of Rochester, N. Y., 11-22-'98;
“ To the Members of the Genesee National Savings & Loam Association:
“ The bearer, Mr. Clarence Ferine, has been appointed Special Agent of this Association, and is authorized to make collections for and otherwise represent us in matters pertaining to the Association.
“ Respectfully,
“ [seal.] H. C. CO YELL, Secreta/ryP
It is- strenuously urged that, notwithstanding his. title and the position he occupied with- the company, Reynolds was merely a special agent, and neither authorized, to employ Perrine or to authorize the latter to employ Wilcox. We deem this claim untenable. It was presumptively within the ordinary scope of Reynolds’ business as general manager to. employ, necessary assistants to prop-' erly transact the business of the company and to employ a real estate broker at the prevailing rate of commissions to effect a sale or exchange of defendant’s property thus acquired and unnecessary
Upon the execution of the Scott' contract Perrine likewise employed Wilcox to procure an exchange of other property owned by defendant and listed at the value of $54,000, and informed Reynolds that in the event of a trade Wilcox would expect the same commission as upon the deal with Scott. Wilcox brought to defendant one Charles B. Townsend, with whom a contract for the exchange of properties was subsequently made by defendant and consummated by both parties. There can be no doubt but that it was the understanding of the parties that Wilcox was to receive the same commission upon this exchange of properties as upon the first. The court submitted it to the jury to determine as a question of fact whether, upon the evidence, it was the understanding and intention of the parties that the valuation of the property for the purpose of commissions was fixed and agreed upon, or as to whether the commissions were to be determined according to the actual value of the property as found by. the jury upon the evidence given on that subject. The jury found that the valuation was agreed upon by the parties, and as there was sufficient evidence to justify their finding in that regard it should not be disturbed.
We have considered the many exceptions pointed out by appellant’s counsel, and while some of the rulings of the court to which exception was taken were erroneous, other evidence in the ease or the subsequent' course of the trial rendered them immaterial, and they do not require a reversal.
The judgment and order appealed from should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.