115 N.Y.S. 1099 | N.Y. App. Term. | 1909
This is an action upon a claim by a broker for commissions alleged to have been earned upon an authorization from defendant to procure a mortgage loan upon certain premises in the city of New York. The authorization was subsequently revoked, but the plaintiff claims that before the revocation the broker had procured and produced a person who was ready, able, and willing to make such a mortgage loan, and that the defendant has repudiated his contract, and refuses to accept the mortgage loan, which he has procured.
The plaintiff, at the trial, was not allowed to introduce in evidence a conversation with the attorney for the lender, which appears to be clearly competent, as held during the course of his employment. It would appear that it was during this conversation that he actually secured an offer to loan the amount required by the defendant. While a broker has not performed his whole contract when he has secured an offer to loan upon the terms set forth by the borrower, but must actually secure a mortgage loan, unless the loan fails through the fault of the borrower (Cresto v. White, 52 Hun, 473, 5 N. Y. Supp. 718; Duckworth v. Rogers, 109 App. Div. 168, 95 N. Y. Supp. 1089), yet, if the borrower absolutely repudiates- the contract, then the broker need not go through the formality of producing the lender, or even giving his name (Duclos v. Cunningham, 102 N. Y. 678, 6 N. E. 790). He also need not show that the proposed lender was able, as well as willing, to carry out his offer, because that fact will be presumed. Thain v. Philbrick, 36 Misc. Rep. 839, 47 N. Y. Supp. 856.
It does not appear from the record whether the justice decided this case upon the conflict of evidence, or because, without this conversation, the plaintiff had failed to show that-he actually secured an offer to loan the money upon the terms proposed by the defendant. The exclusion was, therefore, a material error, and the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.
Judgment reversed, and new trial ordered, with costs to appellant to-abide the event. All concur.
