Timmons v. Shumaker

279 A.D. 879 | N.Y. App. Div. | 1952

The proof clearly establishes that the sale failed of consummation because the purchaser changed his mind before a written contract was signed and not because the seller refused to proceed. Under these circumstances the broker has not earned the commission provided to be paid under the employment agreement. Adel, Wenzel and Schmidt, JJ., concur; Carswell, Acting P. J., dissents and votes to affirm, with the following memorandum in which MacCrate, J., concurs: The seller promised to present a contract consonant with the terms upon which the parties had agreed. The first contract concededly was not consonant with such terms. The second contract was; but that contract was submitted after a lapse of thirty days. Implicit in the seller’s promise to present a proper contract was the obligation to do so within a reasonable time. Upon adequate proof, the trial court has found as a fact that the delay of thirty days was unreasonable and that the seller obstructed and prevented the sale by her conduct and unreasonable delay. Consequently, the brokerage fee was earned. (See Boyd v. Boyd, 252 N. Y. 422.)