50 N.Y.S. 989 | N.Y. App. Div. | 1898
In the year 1893 the defendant, being the owner of a large parcel of 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 1 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 executed on the 1st day of June. By its terms, the defendant agreed to sell the property to Samuel for $2,400,000; $50,000 of which was paid at the time of the execution of the contract, $50,000 was to be paid on the 29th of July, 1893, and the contract was to be carried out between the parties on the 2d of January, 1895, by the payment to the-defendant of $620,000 in money, and securing to it the remainder of the purchase price by mortgages upon several lots sold, in a manner which is not important in this connection. Just before the contract was entered into between Samuel and the St. Luke’s Hospital, the plaintiff executed and delivered to the defendant a letter, of which the following is a copy:
“Office of Evarts, Ohoate & Beaman, No. 62 Wall Street.
“New York, May 31st, 1S93.
“George M, Miller, Chairman Committee of St. Luke’s 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 $6,5Q0.
“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
“Received, New 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, and made yesterday, and being all that is to be paid us for such brokerage if such contract is not fulfilled. $6,500. Charles A. Seymour & Co.”
The contract between Samuel and the St. Luke’s Hospital was never performed, but on the 26th of January, 1895, it was canceled by mutual consent; the plaintiff, however, not being consulted about it. After that had been done the plaintiff brought this action to recover his commissions. An answer was interposed by the defendant, upon which the case came to trial. The action as originally brought was upon a quantum meruit, and it was tried upon the complaint thus framed until the evidence had been closed. The defendant had set up the letter copied above, as constituting the true agreement between the parties for the payment of the commissions, and at a certain stage of the trial, after the defendant had the case, this contract and receipt were read in evidence.After the testimony was closed the plaintiff moved for leave to amend^his complaint by setting up a special contract set out in the letter óf May 31st, which has been quoted above, and that amendment was finally allowed by the court. After the complaint had been thus amended the court ordered a verdict for the defendant, upon which a judgment was entered, from which this appeal has been taken.
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, 6 N. E. 790. 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 N. Y. 479; Kalley v. Baker, 132 N. Y. 1, 29 N. E. 1091. But the plaintiff does not stand upon the usual contract of a broker, and his rights are not to be fixed by the rules applicable to that contract. He alleges that he made a special contract with the defendant, •which has been set out in the former part of this opinion, and by that contract his rights are fixed. That contract provides that the
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, and postpone the final conveyance until the 1st of July, 1895. The plaintiff was asked to consent to this modification of the contract, but refused to do it, and he insists now that, because of the modification, the defendant had lost the power to carry the contract into effect cm the 2d day of January, and therefore the failure to perform was its fault, and he does not lose his rights on account of it. But the defendant had not lost the power to perform on the 2d of January. It was perfectly able to carry the contract into effect on that day, and, if Mr. Samuel had offered on that day to do it, there is no doubt that the transaction would have been completed. The difficulty is that Samuel not only was not ready to perform the entire contract on that day, but he made a forfeiture as to the modified contract. If, after the modification, Samuel had paid the $100,000, but for some reason had become unable to perform the remainder of the contract on the 1st of July, 1895, a very different question would have arisen between the plaintiff and the defendant as to the payment of these commissions. But, as a matter of fact, Samuel forfeited the entire contract by his failure to perform that portion of it which he agreed to do as it was modified on the 2d of January. The extension of the time, while it was a modification of the contract, was one which caused no injury to the plaintiff, but rather tended to benefit him, because the indulgence to Samuel rendered it more likely that he would have been able to carry the entire contract into effect; and when, after the modification, he failed to make any effort to perform the contract as modified, his position with regard to it was precisely the same as it would have been had he failed to perform the whole contract, and entitle himself to a delivery of the deeds on the 2d of January, 1895. In each case the contract was at an end if the defendant chose to consider it so. The plaintiff surely can have no greater right to insist that the defendant violated its contract with Samuel to his hurt, because he forfeited the contract for his failure to perform a part of it on the 2d of January,
It is complained by the plaintiff that the case should have been sent to the jury, but a 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 40-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 are intended to present sharply to the appellate courts the points which are raised and the rulings that are made. The place for these arguments is in the briefs, and, if they lad 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. All concur.