181 A.D. 19 | N.Y. App. Div. | 1917
The plaintiff alleges that he was employed as a broker by the defendant to sell or exchange a parcel of land owned by the defendant for a commission of one per cent of the consideration on the sale or exchange; that' he negotiated an exchange of defendant’s premises with one Weisman and that the agreed value of the defendant’s premises on the exchange' was $75,000. These facts were admitted by the answer. The plaintiff next alleged that the defendant thereupon became indebted to him for the sum of $750. That allegation was denied, but such indebtedness necessarily followed from the facts alleged. The plaintiff further alleged that thereafter and on or about the 20th day of April, 1914, when the defendant and Weisman were about to execute the exchange of their respective properties, plaintiff and defendant made a
On the trial the plaintiff abandoned any claim for damages on account of defendant’s failure to accept the purchaser plaintiff claimed to have procured for the parcel for which $5,000 was to be paid. The plaintiff, however, showed that he .negotiated a sale of the other parcel to one Seaver for a builder whose name was not disclosed and from the testimony of the plaintiff it is to be inferred defendant did not ask that it be disclosed. The plaintiff’s testimony with respect to this sale is to the effect that he first received from Seaver and submitted to the defendant an offer for an undisclosed customer of $14,000, forty per cent in cash, the balance to be secured by a second mortgage on the premises and buildings
On defendant’s breach of the second contract, in the circumstances, I think that plaintiff had an election either to disaffirm the contract and recover, or be restored to the consideration with which he parted on making it, namely, the commission earned by him under the first contract or to recover damages for a breach of the second contract. (Graves v. White, 87 N. Y. 463; Loeb v. Goldsmith, 176 App. Div. 747. See, also, Dubois v. Delaware & Hudson Canal Co., 4 Wend. 285, 289; Schneider v. Miller, 129 App. Div. 197.) He had received nothing under the second contract which he was called upon to tender back on rescission and it would not have been necessary to allege a rescission for the bringing of the action would constitute a sufficient election. (1 Pom. Eq. Juris. [3ded.] 117, § 110; 2 Black Rescission & Cancellation, § 576; 1 Abb. Tr. Br. PI. 380; 2 id. 1833; Bither v. Packard,
The testimony of the plaintiff tends to show that he procured a customer for one of the parcels on terms satisfactory to the defendant and that the defendant verbally accepted the proposition and, in effect, released him from any obligation to produce the customer or to continue the negotiations further until after defendant acquired title to the land. The jury might have found that the defendant was alone responsible for plaintiff’s failure to bring the customer to him, but there is no evidence from which they could have found that the customer was ready, willing and able to perform. The equities appear to be with the plaintiff and particularly since, if these views are right, he is now precluded from recovering the consideration. Such cases are apt to sway courts to extend doctrines unwisely. If the evidence should be held sufficient to warrant a recovery for the difference between the amount the purchaser offered for the parcel and the amount defendant agreed to take therefor, namely, $1,250, the recovery would necessarily proceed upon the theory that but for the defendant’s breach of the contract the customer procured by plaintiff would have performed. On these facts it will not do, I think, to indulge in presumptions to that extent. A ruling to that effect might result in a recovery where the customer was wholly irresponsible financially and would not and could not have paid the consideration. It is to be borne in mind that the plaintiff was to receive any amount over and above $12,750 which he obtained for this parcel. It was doubtless contemplated that the payment.
The defendant’s wrongful breach of the contract has placed the plaintiff in an unfortunate position. His rights then became fixed and he was called upon to make an election whether to abandon the fruits of the contract and by rescinding recover the consideration or whether to stand upon the contract and endeavor to recover on the theory of performance with respect to one or both parcels. The time which he was to have to negotiate the sales had not expired; but when defendant refused to take title or to be bound by either contract the plaintiff could not in good faith endeavor further to obtain a purchaser. The nonsuit cannot be reversed on any theory argued on the appeal, but I am of opinion that it may and should be reversed on another ground. The action is one at law and a breach of the contract was shown as alleged and, therefore, plaintiff became entitled to recover nominal damages at least. Appellate courts do not reverse judgments to enable a recovery of merely nominal damages; but where a party was entitled to and has not received nominal damages and it can be seen that he may be able on a new trial to show substantial damages, and that an injustice may be done by allowing the erroneous decision to stand, it is within the power of an appellate court to reverse for the error and thus afford the plaintiff an opportunity to show and recover substantial damages. (Thomson-Houston Electric Co. v. D. L. I. Co., 144 N. Y. 34, 49; Mortimer v. Otto, 206 id. 89; Stevens v. Amsinck, 149 App. Div. 220, 229.)
Clarke, P. J., Scott, Dowling and Smith, JJ., concurred.
Judgment and order reversed and new trial ordered, costs to appellant to abide event.