Parkhurst v. Tryon

119 N.Y.S. 184 | N.Y. App. Div. | 1909

Williams, J.:

The judgment of the County and Justice’s Courts should be reversed, with costs of this appeal and in the lower courts.

The action was brought to recover commissions on the sale of real property. There was a written contract which provided that Parkhurst should advertise and attempt to sell for Tryon the real property, a house and lot in Pulaski, for not less than $1,500, unless Tryon consented to a lesser price, and Tryon agreed and covenanted with Parkhurst “ that in case of the sale or conveyance of said property at any time within one year from this date or thereafter until he notifies [Parkhurst] in writing, he will pay [Parkhurst] 5 per cent of the amount of the sale.” The contract was made March 6,1907, and thereafter and on August 26,1907, the property was conveyed by Tryon and wife to one Hutt for $1,238.84, the negotiations for such sale having been made by Mrs. Tryon, the wife. Parkhurst never had any communication with Hutt and knew nothing about what was being done until after the sale was completed and the conveyance given. Parkhurst did some advertising and made some effort to sell it.

The only question in this court relates to the construction to be given to the written contract. The County Court construed it to mean that Parkhurst was entitled to his commissions if the property was sold by Tryon or any one else within the one year. Parkhurst had only to advertise and try to sell, and though he did not sell himself, and did not find any purchaser, and did not in any way aid in the sale actually made, still he was entitled to his commission.

This construction takes the question out of the line of adjudicated cases and disposes of it under the peculiar language of the contract in question. We are not inclined to agree with the construction given by the County Court to the contract, but rather to hold that the sale referred to in the language above quoted was a sale made by Parkhurst, or one brought about by him, he having found the purchaser and brought Tryon and the purchaser together. The contract does, not seem to us to give Parkhurst during the year the exclusive right of sale to the exclusion of Tryon himself. Very likely Tryon could not have sold through some other agent, but he did not do that. His wife was not another agent. ' Her action in the matter was the same as if by himself. The argument founded upon the word or between the words “ sale ” and “ conveyance ” is not a good one. A reasonable construction should be given to the words, and not a constrained one, which would enable Parkhurst to recover commissions upon a sale he was in no way responsible for, and would prevent Try on from selling himself without becoming liable to Parkhurst for full commissions'on the sale.

All concurred.

Judgment of County Court and of Justice’s Court reversed, with costs in all courts to appellant.