59 N.Y.S. 298 | N.Y. App. Div. | 1899
Lead Opinion
The action was brought to recover commissions which the plaintiff claimed to have earned by negotiating a sale for the defendant of certain property in the city of New York. Upon the trial the plaintiff had a verdict for the amount claimed, with interest. A motion for a new trial upon the usual grounds was denied, and after judgment had been entered upon the verdict, the defendant took this appeal.
The case was submitted to the jury upon a charge to which no exceptions were taken. We have examined the few exceptions taken to the rulings upon evidence and we find no error in them.
At' the close of the evidence the defendant moved to dismiss the complaint, upon the ground that it did not appear that there was a meeting of the minds of the parties, brought about by. the broker, or that a meeting of their minds occurred. The court denied the motion to dismiss the complaint, and the defendant excepted to his ruling. This exception raises the point which was principally relied upon by the appellant and presents the only question that it is necessary to examine. In its consideration we must be controlled by the evidence presented by the plaintiff. There was considerable contradiction in the testimony, but the jury have found in favor of the plaintiff. It must, therefore, be assumed that his story of the case is the true one. As the motion for a dismissal of the complaint was based upon the claim that there was no evidence on the part of the
The action was brought to recover what the plaintiff claimed was his proper compensation for the efforts which he made to bring about a sale of the property of the plaintiff which had been intrusted to him.
• When a broker undertakes to effect a sale of property owned by his principal he engages tó produce a purchaser who is ready and willing to enter into a contract on the employer’s terms. This implies and involves the agreement-of buyer and seller; the meeting of their minds, produced by the agency of the broker. The broker assumes the risk of his inability to accomplish that result. He is not ordinarily entitled to commissions for unsuccessful efforts to effect a sale unless the failure is caused by the fault of the principal. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378.) But if he presents to the seller a person who is ready and willing to enter into a contract upon the terms which the seller has dictated, he has done his duty and is entitled to his commission, although the sale may not take place, if it fails because the seller capriciously changes his mind after a purchaser consenting to the prescribed terms is produced. (Moses v. Bierling, 31 N. Y. 462.) In this case the sale did not take place, but the broker insists that he became entitled to his commissions nevertheless, because he says that he did in fact produce a purchaser who was ready and willing to enter into a contract upon the terms prescribed by the seller and that a contract was in fact agreed upon, but that the seller afterwards, and before the. contract could be reduced to writing, capriciously changed his mind and so the bargain failed.
The question simply is whether there is any evidence on the part of the plaintiff or his witnesses, which would warrant a. jury in finding that this claim of the plaintiff was well founded.
It appears that the defendant was the owner of two pieces of land at, the corner of Columbus avenue and West Eighty-fourth street, on
The plaintiff says that, when the parties had met, Mr. Casey said: “ I will want $10,000 cash down on this contract,” which Buchsbaum refused to pay.. Thereupon there was considerable conversation in regard to the amount which should be paid, and it was finally agreed upon at $4,000. After that sum had been fixed, and while the parties were conversing about the terms of the contract with a view of reducing them to writing, Mr. Casey stated that, if he accepted a payment of only $4,000, he should insist upon' a right of way across the end of the lot, four feet wide, to the adjoining building. This. Buchsbaum refused to allow. Whereupon Casey said that, unless that was allowed, he should insist upon his payment of $10,000, and after some conversation in that regard the parties failed to reach an agreement, and the interview terminated and there was no sale.
The plaintiff claims that, when Casey agreed to accept a $4,000 payment down, the minds of the parties had met upon all the. essential terms of the contract, and that so far as he was concerned his
There is no evidence that as between Casey and Buchsbaum there had been an actual meeting of the minds of the parties, because it is apparent that when the arrangements came to be plainly stated, with a view to reducing them to writing, it appeared that there was a failure to understand one another upon an essential part of the bargain. The plaintiff was not at liberty to say that the defendant had no right to insist upon the new term in the contract because the only implied contract between the plaintiff and the defendant at the time the interview began was that if the plaintiff produced a buyer who was willing to take the property at $161,000 and pay $10,000 down, he would be entitled to his commissions. As he failed to do
The judgment and order, therefore, must be reversed and a new trial granted, with costs to the appellant to abide the result of the action.
Van Brunt, P. J., and Ingraham, J., concurred; Patterson, J., concurred in result; Barrett, J., dissented;
Dissenting Opinion
There can be no doubt that if the defendant had originally agreed to take $4,000. down instead of $10,000, the plaintiff ’ would have earned his commission. The defendant could not have escaped his obligation on that head by making new conditions after the broker had found a customer who was ready and willing to comply with the original conditions. Here the parties agreed upon the price, and also, as the jury have found, upon the amount to be paid upon the signing of the contract, namely, $4,000. The jury were authorized to find that at the moment when the defendant agreed to accept $4,000 down the minds of the parties finally met. The defendant did not then say that he would accept $4,000 down instead of $10,000,. provided the purchaser would permit the reservation of a right of way. That acceptance was unconditional, and it left the matter precisely as though .the defendant had originally told the broker that he would sell for $161,000 and would take $4,000 down. The subsequent insistance upon the right of way was an attempt to vary a completed verbal bargain. That is, it was competent for the jury to so regard it. I think the question on this head was fairly and properly submitted to the jury and that the judgment should he affirmed.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.