13 N.Y.S. 290 | New York Court of Common Pleas | 1891
The defendant employed plaintiffs, upon a promised compensation of $500, to procure a party who would furnish' the necessary money to erect such a factory as the defendant needed for his business, on certain lots of land in Brooklyn; stipulating, however, that the terms of the transaction should be satisfactory to him. The plaintiffs thereupon procured a party who was able and willing to furnish the money for the required purpose, and introduced him to the defendant, with whom, and the latter’s agent, he had some preliminary conferences concerning the cost of the building, estimates
Upon the trial, the allegations of the complaint were fully sustained by the evidence. The agreement of employment of defendant was in writing, and was produced, and it contained no such conditions as defendant set up in his answer, but only required that the terms upon which the money was to be advanced should be satisfactory to defendant. It was shown that there was no practical dispute as to such terms, because the defendant abandoned the idea of building upon discovering that the factory would cost more than he anticipated. The defendant himself swore: “I don’t know that Mr. Peters [the party procured by plaintiffs] ever stated to me the terms upon which he would enter into such a contract. The details were undertaken by Mr. Anderson, [defendant’s agent,]—the particulars of the transaction. I did not continue these negotiations, because the price was so much greater than I contemplated in the beginning, or that I could afford. The cost of this building largely exceeded the amount that I had originally considered as the probable cost.” After this unqualified statement of his reasons for abandoning the project, his counsel attempted to draw from him, and to make it appear, that he was actuated in so doing by a report from Mr. Anderson that Mr. Peters had required 10 per cent, upon the cost of the building as the profit to himself. Mr. Anderson testified that such a proposition was broached by the plaintiffs on behalf of Peters, aud that he was surprised thereat; but he was confronted with his own letter to plaintiffs, setting forth a detailed scheme of the proposed building enterprise, whereby a builder advancing the money for the building would receive as profit 10 per cent, on the cost of construction, besides other percentages, making a margin of nearly 30 per cent, return for his money the first year, and more afterwards. As defendant swore that Anderson was authorized to arrange terms and details, this piece of evidence shows clearly that it was not any dissatisfaction with the terms proposed by. Mr. Peters that caused the defendant to break off the negotiations, but that the true reason was, as stated by him, that the projected building would cost more than he anticipated.
The court left it to the jury to say whether the plaintiffs had procured a party ready, willing, and able to furnish the necessary money to erect a factory that was needed by the defendant in his business, on terms that were satisfactory to him; and they found a verdict for the plaintiffs for the full amount claimed. No exception was taken by the defendant to leaving the question of performance to the jury, but, on the contrary, he asked that the court charge that “terms of the offer brought by this party to the defendant must have been shown by the plaintiffs to have been satisfactory before they can recover. ” The court said: “1 have so told them, and that they must show that by.a preponderance of evidence.” It would have been quite proper for the court to instruct the jury that the plaintiff did not claim as for a full
The defendant was content to rest his legal rights upon his exceptions to the denial of his motion to dismiss the complaint, not upon the form in which the case was submitted to the jury. The motions to dismiss were properly denied, for plaintiffs were suing for the value of the services rendered, and they were entitled to recover something upon the facts proved. Pursuant to the terms of their employment, and strictly in conformity therewith, they had procured a party able and willing to furnish the necessary money to enter into negotiations with the latter as to the terms of furnishing such money, and there is nothing to show that such terms would not have been satisfactory to the defendant. On the contrary, it may fairly be inferred from the evidence that, had the latter concluded to go on with the contemplated enterprise, he would have got the money upon his own terms, as proposed by his agent Anderson. The plaintiffs, therefore, had substantially performed their contract, but at all events had so far performed as to be entitled to compensation for what they had done. It is true, as claimed by the appellant, that one who employs a broker may terminate the employment at will, while negotiations on the part of the latter remain unsuccessful. Sibbald v. Iron Co., 83 N. Y. 378. That was a case in which the oroker, as the court said, “had been unsuccessful. He had not made a bargain, and had failed to bring buyer and seller to an agreement after having had four months’ opportunity; and now his authority was terminated without his having earned commissions.” This is not the case before us. Here the plaintiffs liad been successful as far as they had been permitted by the defendant to go, and were not given the opportunity to go further. There might have been some-tiling more for them to do. It was their duty to bring the party to the terms prescribed by their employer, and that might have involved more or less negotiation, but it does not lie with the defendant to say that, because this was not performed, the plaintiffs have not earned their recompense. Perhaps we might go so far as to say that, under the cases, the defendant, having made the performance of the condition precedent impossible by his own act, is estopped from denying that the plaintiff had not performed. Gallagher v. Nichols, 60 N. Y. 438; Risley v. Smith, 64 N. Y. 576, 2 Pars. Cont. e. I, § 5. We cannot say that anything remained to be done by plaintiffs to earn their commission. The evidence does not, as we have said, warrant the inference that there would have been any difficulty about terms. For aught that appears, the plaintiffs had substantially performed their whole undertaking. This consideration disposes of the point made on the appeal, (but not specifically, raised upon the trial,) that there is no proof of the value of the services rendered by the plaintiffs, and the jury had the right to find that the services rendered were worth the whole stipulated price, because the contract had been substantially performed.
There remain to be considered only the exceptions to rulings upon the admission and rejection of testimony. Hone of them were well taken. At folios 31 and 32, the defendant inquired as to a matter which was settled by his own written contract; at folio 39, as to an immaterial matter, viz., whether defendant ever realized any profit or value from plaintiffs’ services; at folio 49, as to a matter which was subsequently answered; at folio 57, as to com
