Wright v. Fulling

93 N.Y.S. 228 | N.Y. App. Div. | 1905

Jenks, J.:

In 1897 the parties executed a contract whereby the defendant for “ the consideration hereinafter mentioned ”■ employed the plainHiff ;as. his manager and agent of certain real estate. The'only “ consideration hereinafter mentioned” is found in the provisions that the plaintiff is to 'be the sole agent of fhe defendant in the sale of. the said property, is to employ all brokers, who are to be under his sole control, and are to be paid by him out of the commissions paid to him by the defendant; that the amount of the commissions is to be ten per cent of the selling price of each and every building lot sold of the said property, whether sold by the plaintiff or any other party, “ excepting the sales, made solely and directly ” by'the defendant “ tq' his personal friends,, of such lots included in that part of the- said property which is now divided into city blocks and has regularly graded streets and sidewalks and! other improvements, upon which sales ” the plaintiff “ is to receive per centum of the selling pi-ice on the signing of t.he Contract to sell.” ■

The plaintiff sues to recover ten per cent commissions on- those sales, and - has recovered a verdict which mathematical analysis demonstrates is based upon' an allowance of ten per cent on two of the sale's and two and one-half per cent on the third sale. The evidence justifies the conclusion that two of these' sales were made by or through the plaintiff, pursuant to the terms of the contract. I think, however, that the contract cannot be sustained in respect to 'the. provision that the plaintiff may receive two and one-half per cpnt op the third sale. Although it first provides that the plaintiff should act as “ manager and. agent of the real estate,” yet, there follows the provision, “and the said Isaac E. Wright enters the employ of the said Henry Fulling as his manager and agent for the sale of the said property.” Thus, these service's of the manager and agent are limited to the sales of the property.. Moreover, the provision as to the payment of the commission of tiwo and one-half per cent is limited not only to sales made solely , and directly by the, defendant to his personal friends, but also to such sales made "of lots then divided into city blocks with regularly graded streets and sidewalks and other improvements. So that it would appear in any event that the services of a manager of the estate were not required as to such property. And on cross-examination the plaintiff testifies that every service he rendered, except the sale of the lots, was under another contract described as that of May fifteenth, for which he had been paid in full. I think that no legal consideration appears whereby the plaintiff, as manager and agent for the sale of the said property, can enforce the promise to pay him a two and one-half per cent commission upon the third sale. (Hamlin v. Wheelock, 42 Hun, 530 ; appeal dismissed, 117 N. Y. 656.) I think that this is not a case for an extra allowance in view of Standard Trust Co. v. N. Y. C. & H. R. R. R. Co. (178 N. Y. 407).

I advise that the judgment be modified by deducting therefrom twenty-four dollars and seventy-five cents, representing the two and one-half per cent commission, and also by striking out any extra allowance, and as thus modified it be affirmed, without costs of thia appeal to either party.

Hirschberg, P. J., Woodward, Rich and Midler, JJ., concurred.

Judgment and order of the County Court of Westchester county modified in accordance with the opinion of Jenks, J., and as modified affirmed, without costs of this appeal to either party.