28 A.D. 119 | N.Y. App. Div. | 1898
In the year 1893 the defendant, being the owner of a large parcel óf land in the city of New York which it desired to dispose of, made an arrangement with the plaintiff by which he was .to procure a purchaser of the premises at the price of $2,400,000, for which he was to receive the ordinary broker’s commission of one per cent, or $24,000, The plaintiff succeeded in finding a person who was willing to make the purchase and he brought the parties together for that purpose. Before the contract of sale was finally completed, the defendant expressed some disinclination to accept the proposed purchaser, and by way of removing that hesitation the plaintiff entered into a special agreement with the defendant with regard to the payment of his commissions, which will be more- particularly referred to later. After that agreement had been made, the defendant entered into a formal contract for the sale of its premises to one Samuel, who was the purchaser produced by the plaintiff. The contract was dated on the 29th of May, 1893, and seems to have been actually
“ Office of Evarts, Choate & Beaman, i “Ho. 52 Wall Street, Hew York, May 31s#, 1893. |
“ George M. Miller,
“ Chairman Committee of St. Lukds Hospital:
“ Dear Sir.— I agree to receive sixty-five hundred dollars ($6,500) brokerage for the sale of St. Luke’s Hospital, and the balance of one per cent on $2,400,000 to be paid when the contract made with Lewis S. Samuel is fulfilled and the balance of purchase money, namely, $620,000 and bonds and mortgages to the extent of $1,680,000 are received and deeds delivered. In the event of the transaction not being fulfilled, I'waive all claims for further brokerage than $6,500.
“ Yours respectfully,
“ CHARLES A. SEYMOUR & CO.”
Immediately after the contract was executed, $6,500, being the first installment of his commissions, was paid to the plaintiff by the defendant, and he executed a receipt for it, of which the following is a copy:
“ Received, Hew York, June 1st, 1893, from St. Luke’s Hospital, $6,500, being the amount within named as to. be paid us on account our brokerage for sale of its site to Lewis S. Samuel as per contract for the same, dated May 29th a-nd made yesterday, and being all that is to be paid to us for such brokerage if such contract be not fulfilled. $6,500.
“ CHARLES A. SEYMOUR & CO.”
The plaintiff insists, • in the first place, that as he had been employed to sell this property for the defendant at the usual commission some time before the 31st of May, 1893, his contract of that date was without consideration and, therefore,, is not binding • upon him. However much weight might have been given to this contention had the pleadings remained in their original state, it is quite clear that, after the plaintiff had so amended his complaint as to. bring his action upon this contract and sue for its enforcement, he is not at liberty to say that the contract is not one which can be enforced, or if he does say it and procures a' ruling to that effect,' it would put him out of court. That point, therefore, need not be any longer considered. The usual rule where a broker has been employed to effect a sale of property is, that if he finds a purchaser of sufficient responsibility, willing to take the property upon the terms stated, he has performed his contract and is entitled to his commissions. (Duclos v. Cunningham, 102 N. Y. 678.) The fact that either party has refused subsequently to carry out the contract does not affect the right to the commissions which have already accrued. (Knapp v. Wallace, 41
The plaintiff claims that this cancellation put it out of the power of the defendant to perform its. contract and, therefore, his rights to his commissions had accrued. But while the defendant at that time had the right to perform the contract if Samuel had been willing to do so,yet it could not perform it unless Samuel did, and Samuel having forfeited the Contract and thereby shown his intention not to carry it into effect, the defendant was at liberty to accept the forfeiture, because the only other thing it could do was to bring an action to compel Samuel, to perform. All.tliat was released by the-cancellation Was the right of the defendant to sue Samuel for his damages for failure to perform, and in that the plaintiff had no interest whatever, and he lost nothing by its release. No rights of Samuel were changed by this cancellation. He had no right. As to him the contract was at an end .already if the defendant chose to consider it so, and, therefore, in -effect, so far as the right to enforce the contract was concerned, the cancellation.amounted to nothing.
But it appears that on the 24th of October,, 1894, While the contract was still in force,- the defendant, at the request of Samuel, consented to modify it so that, instead of requiring, the Completion of the contract and delivering the deeds on the 2d of January, 1895, it agreed to accept a payment of $100,000 on that day a-ndpostpone the final conveyance until the 1st of July, 1895. The plaintiff, was asked to consent to- this modification of the contract, but refused to
It is complained by the plaintiff that the case should have been sent to the jury, but á careful consideration of the evidence fails to show any disputed question of fact. Indeed, we are not able to discover that the plaintiff made any request to submit any question of fact to the jury. But it is quite likely that we have overlooked it in the forty odd pages of desultory conversation which is at the end of -the case, where the exceptions are usually made sharply to appear. We cannot refrain from expressing our regret that, in a case of this importance, which turns solely upon questions of law,, those questions should have been presented in a case so unscientifically made as this is. The reasons- of counsel which are presented -to the court at the close of the trial upon motions, are frequently not uninteresting, but they have no place in a, case and exceptions which is intended to present sharply to the apjiellate courts the points which are raised and the rulings that are made. ■ The place for these arguments is in the briefs, and, if they had been put into the briefs, it would- have rendered the task of the court much easier.
No complaint is made as to the rulings of the court upon the admission or the rejection of evidence. Indeed, in view of the. amendments which were made to the pleadings and the way in which the case was finally presented to the court, those questions were practically rendered, of no importance.
. Upon the whole case we are quite clear that there is no error, and the judgment should be affirmed, with costs.
Van Brunt, P. J., Barrett, Patterson and McLaughlin, JJ., concurred.
Judgment affirmed with costs.