4 N.Y.S. 697 | N.Y. Sup. Ct. | 1889
The verdict was directed in favor of the plaintiff for commissions upon an alleged'contract for placing the defendant’s electric apparatus in the apartment house known as the “Osborne.” To entitle the plaintiff to recover it was incumbent upon him to prove that he had obtained a contract under which the apparatus could be placed by the defendant in the building; for the law is settled that a broker can only become entitled to his commissions by bringing the different parties together in such a manner as to create an agreement for the object intended to be accomplished, and where the bl-oker may appear to have failed in that respect he is not entitled to claim or recover his commissions. Whart. Ag. 325; Sibbald v. Iron Co., 83 N. Y. 378; McGavock v. Woodlief, 20 How. 221; Duclos v. Cunningham, 102 N. Y. 678, 6 N. E. Rep. 790. The point, therefore, on which the motion must be determined is whether the plaintiff obtained for the defendant a contract for placing this apparatus in the Osborne. A proposal to put in the machinery and the apparatus was contained in a letter written by the president of the defendant to Mr. Osborne on the 2d of July, 1885. But before this was answered, and on the 13th of the same month, the same person wrote again to Osborne, requiring that what was called the “plant, ” Which included the machinery and apparatus, should remain the property of the defendant by way of security for the payment of the purchase price. The language of the letter was that “the whole contract price to be secured by an agreement, to be entered into with us by you and the holders of the mortgages, whereby the said plant is to remain the property of the company until fully paid for.” Osborne was the owner of the legal title, but the property had been incumbered by mortgages aggregating about $785,000. These mortgages were held by John Taylor, who did not himself consent that the machinery and apparatus should be placed in the building, subject to this right of the defendant. Mr. Osborne, by his letter of the 14th of July, did accept the defendant’s proposition as it was contained in the letters of the 2d and 13th of that month; but he did not undertake in the letter written by him to bind Mr. Taylor. He was known to the plaintiff “as a man that was interested in the building, as furnishing money, and everything was submitted to him that was bought. His approval had to be on everything that was bought.” This was the statement of his position, as information of it had been acquired by the plaintiff himself. And the witness Osborne further testified that his “position in the matter was simply acting for Mr. Taylor, as it was not in my original contract. When I bought the lots from Mr. Taylor the electric lights were not spoken of to be put in the building, and therefore he controlled that; and therefore I was simply an agent for the amount of that work.” Mr. Osborne, after his letter of the 14th of July, wrote to the defendant, withdrawing his own acceptance of the proposition for putting the electric lighting apparatus into the building. This letter was shown by the president of the company to