221 A.D. 615 | N.Y. App. Div. | 1927
In view of the testimony of the plaintiff it is unnecessary to determine the relationship between the parties which the said contract established. The plaintiff testified that three days before the contract was signed he, as a real estate broker, had entered into an oral agreement with the defendants whereby if he sold the property for them for $43,000 he was to be paid a commission of three per cent, and that if he procured a purchaser for more than that amount he was to receive in addition one-half of the excess. Therefore, when he made the written contract on which this action is brought he was the agent of the defendants and was bound to disclose to them all facts within his knowledge which might have influenced them in making the contract which is the subject of this action. “ The general rule is well settled that a broker must act with entire good faith towards his principal, and he is bound to disclose to his principal all facts within his knowledge
This is not a case where an oral contract is reduced to writing pursuant to an understanding between the parties to that effect. The oral contract had already been substantially performed.by the plaintiff. There was no understanding or intention to have it reduced to writing. Had plaintiff not found a purchaser it would not have been made. Contrary to the allegation of his complaint that the written contract was made before the purchaser was found, plaintiff testified as follows: “ Q. Why did it take three days to prepare this agreement? A. I did not want to have any papers signed until I found a purchaser. Q. You did not want to have any papers signed until you found a purchaser? A. Yes, sir. Q. At the time you had that paper signed you had found a purchaser? A. Yes, sir. * * * Q. You had a bargain with him [the purchaser] at $45,000? A. Yes, sir. Q. You had the check in your pocket? A. No, sir, I had it in my office. Q. Made payable to you for $500? A. Yes, sir.” Under the circumstances here appearing we think the written contract was not the formal expression of the oral contract, but that having been made as the plaintiff admits after substantial performance of the oral contract on his part and not pursuant to any intention to reduce the latter to writing, it must be considered an independent contract unrelated to the prior oral one. Moreover the latter contract was not a reproduction in form of the former one. Plaintiff brings his action on this written contract and must accept it with whatever infirmities it possesses. As we have already stated, the relationship between the parties which it established is immaterial. Whatever the relationship the contract was clearly procured as the result of suppression of material facts by an agent of the defendants and is, therefore, unenforcible by such agent.
For the reasons stated the plaintiff failed to establish as against either defendant the cause of action alleged. As stated by the trial justice the plaintiff also failed to prove that the defendant Annie Reinhard authorized or ratified the contract on which the action is brought.
The judgment and order should be reversed on the law and the
Van Kirk, Hinman, Davis and Whitmyer, JJ., concur.
Judgment reversed on the law and complaint dismissed as to the defendant Samuel Reinhard and affirmed as to the defendant Annie Reinhard, with one bill of costs of this appea. to the defendants.