Winans v. Jaques

| New York Court of Common Pleas | Apr 3, 1882

Van Brunt, P. J.

[After stating the facts as above.]— That the knowledge of the existence of the house in question came to Mr. Sewell through the agency of Mr. Stevenson, the foregoing statement of facts seems clearly to indicate : that at the time of the conveyance the defendant in this action supposed that some claim for commissions might exist in favor of Mr. Stevenson seems also to be established. But it is claimed upon the part of the defendant that at the time that he signed the contract with Mr. Sewell he was ignorant of the fact that Mr. Sewell was acting as the attorney of Mrs. Gill, and he was also ignorant of that fact at the time when he paid the broker Griswold his commission.

But I fail to see how that can relieve the defendant Jaques from liability upon the facts as proven upon the trial of this cause, as it is evident that the communication which was made to Mrs. Gill, who was the real purchaser in this case, by the assistant of Mr. Stevenson, was the procuring cause of the sale. Mrs. Gill examines the house, she tells her husband, her husband tells Mr. Griswold that this house is for sale and that Mr. Sewell, who turns out to be Mrs. Gill’s attorney, desires to purchase it, and Mr. Griswold then succeeds in getting the defendant to make a contract for the purchase of the house with Mr. Sewell. It seems from that evidence that the direct agency of Mr. Stevenson’s assistant in procuring the sale is established, and it would appear as though it was a scheme upon the part of Mr. Gill to defraud Mr. Stevenson out of his commission, and enable his friend Mr. Griswold to make such commission.

It may be unfortunate that the defendant in this action has been victimized by such a scheme, but that misfortune cannot deprive the plaintiff in this action of his right to recover. The defendant in this action knew at the time that he made this sale that persons from Mr. Stevenson’s office had come to examine that house, and if he wanted to protect himself against any possible claim for commission he should have simply asked Mr. Stevenson whether he had any claim, before he so readily paid Mr. Griswold his claim, and I know of no other way in which an owner who places his property in the hands of different real estate brokers, or allows different real estate brokers to intervene, can protect himself from such conflicting claims.

Under the circumstances of this case, therefore, it would appear that Mr. Stevenson showed an employment to sell, and that he was the procuring cause of the sale, and therefore entitled to his commissions.

The judgment must therefore be reversed and a new trial ordered, with costs to abide the event.

J. F. Daly and Van Hoesen, JJ., concurred.

Judgment reversed and new trial ordered, with costs to abide event.