20 N.Y.S. 547 | N.Y. Sup. Ct. | 1892
The plaintiff sued to recover compensation for services alleged to have been rendered by him as a broker in negotiating an exchange of property situated on Staten island, and belonging to the plaintiff, for real estate in the city of New York owned by one Morganthaler. The allegations of employment of the plaintiff by the defendant, of the rendition of service, and agreement to pay therefor, are denied by the answer. The cause was referred; the referee reported in favor of the plaintiff; and from the judgment entered on the report, the defendant appeals. The employment was fully proven, as was also the amount of compensation to be paid the plaintiff if he performed the service for which he was so employed; but the evidence does not show that the plaintiff has earned his commission, and does not justify the referee’s findings in that regard. In the transaction of the proposed exchange the plaintiff dealt with Messrs Hoye, the brokers of Morganthaler. The basis of the dealing was that the defendant should, in addition to conveying his Staten island property, pay $1,750 in money, and take a house on Lenox avenue, subject to a mortgage of $13,000. John O. Hoyt testified that the plaintiff and defendant came together to his office in the early part of July, 1891, and the plaintiff spoke of having, as broker, a place of the defendant on Staten island, to which Hoyt replied he had a house on Lenox avenue he would trade. He states that afterwards his principal (Morganthaler) agreed to accept $1,750 as the cash consideration to be paid, and on the 21st July the consent of the defendant to that was given, the latter stating he would give that amount in money and the Staten island property, and take the Lenox avenue house, with the mortgage on it. Thus far the parties were in accord, and it is clear no other terms were ever contemplated by the defendant. The disagreement or misunderstanding results from what followed. Hoyt drew a written contract containing other terms than those mentioned. Morganthaler signed it. On the 22d July, Kohler and the plaintiff called at Hoyt’s office. Conversation was had respecting the contract. It was then signed by Kohler, but on the express understanding that it was not to be considered as binding the defendant, nor as a delivered instrument, until Mr. Van Name, the defendant’s attorney, could examine it the following day. The plaintiff, as well as Hoyt, testifies substantially to that. It is also testified to that the defendant criticised the contract as drawn, but limited his declared objection to the shortness of time allowed for the completion of the transaction. It is also true that the defendant signed a letter, (Exhibit No. 2,) in which he states that the terms of the trade are correctly set forth in the contract; but we are convinced that he is right in further stating that he did not observe that he was required by that contract to pay