Opinion
June 15, 1906.
James F. Higgins, for the appellant.
W. Wickham Smith, for the respondents.
On the trial of this action, at the close of the plaintiff's case, the complaint was dismissed; evidently on the ground of the failure of proof of the cause of action set forth in the complaint. We are of the opinion that the ruling of the court in this regard was erroneous and that the case should have gone to the jury.
The action was brought upon a special contract by which the defendants employed the plaintiff to render services in and about negotiations for the sale of real estate in the city of New York, belonging to the defendants. The plaintiff was a real estate broker and, according to the allegations of the complaint, his employment was somewhat special in its character. It is alleged in that pleading that in November, 1901, he was employed and authorized by the defendants to sell the defendants' property and he was to be paid a commission of a certain percentage; that thereafter the plaintiff advised the defendants to purchase an adjoining piece of property in order to make a larger plot which could be more advantageously sold; that thereafter the plaintiff was employed by the defendants as broker to sell the said property and he made various efforts to sell the same; that on or about the 24th of May, 1904, "this plaintiff was duly authorized, in writing, by the defendants, to offer the property 424 to 432 West 32d Street * * * for sale, and for his services it was agreed that this plaintiff was to be paid ten (10%) per cent on any amount above Sixty thousand ($60,000) dollars that might be realized, and an additional ten (10%) per cent on any excess above named, to wit, One hundred thousand ($100,000) dollars, and which arrangement was by said agreement limited to fifteen (15) days." It is then alleged in the complaint that the plaintiff, within fifteen days after the date of the arrangement, procured an offer for the property of $80,000 and advised the defendants that they might be able to obtain more; that thereafter, upon advice from the plaintiff, the defendants sold the property to the Pennsylvania Railroad Company for $84,000, and the plaintiff became entitled, under the agreement, to ten per cent of $24,000, being the excess above $60,000. The defendants in their answer admit giving the authorization in writing to the plaintiff, of which the following is a copy: "Confirming our conversation, you are authorized to offer the property 424 to 432 West 32nd Street for sale, and in lieu of the usual brokerage you are offered 10% on the excess above $60,000, and an additional 10% on any excess above figure named, $100,000. This arrangement limited to say 15 days; that is, must end a reasonable number of days, say 10, prior to date noted for hearing of condemnation proceedings."
The fair construction of the agreement is that the plaintiff was authorized to offer the defendants' real estate for sale, he to be paid for his services if a purchaser were procured willing to pay a sum in excess of $60,000, a commission consisting of ten per cent on the amount accepted by the defendants in excess of $60,000, and an additional ten per cent on an amount exceeding $100,000. The defendants also admit in their answer that on May 27, 1904, which was within the period of fifteen days, they were notified by the plaintiff that the representative of the Pennsylvania Railroad Company had made an offer of $800 per front foot, or $80,000 for the property. That was communicated to the defendants in a letter set forth in the answer, in which, among other things, it is stated: "This does not include plottage; I have every reason to believe that if we desire to negotiate on any such basis, they would be willing to add 10% for plottage, or about Ninety thousand ($90,000) for all." The defendants also admit that they sold the property to the Pennsylvania railroad or parties representing it for $84,000.
The plaintiff's cause of action was, therefore, based upon a contract by which the defendants agreed to pay for services for finding a purchaser for a price to be determined by the defendants at a minimum of $60,000, the compensation to be graduated according to the price received. The issue presented was as to the performance of that contract, and it is shown in the answer by the letter of the plaintiff to the defendants that an offer was procured of $80,000, which was submitted to the defendants with an intimation that a larger figure possibly would be offered, and the defendants subsequently made a sale of the property to the purchaser procured by the plaintiff at an advance of some $4,000 over the amount reported by the plaintiff to the defendants as that which the railroad company would be willing to pay for the property.
On the trial the plaintiff testified that the defendants agreed to pay ten per cent on any amount they should receive between $60,000 and $100,000, and an additional ten per cent for any amount received over $100,000, and that the letter set forth in the answer of the defendants was written to confirm that verbal agreement. But, on cross-examination, he testified that when the arrangement was made the services had already been rendered, and it was not contemplated that anything was to be done in the future. However, he also said that when he communicated the offer of the railroad company to pay $80,000, that was done to advise the defendants what it was willing to pay at that time. He also testified that the representative of the railroad company said to him that he would pay $800 a front foot in the particular block in which the defendants' property was situated, and that was communicated to the defendants on information which he had received from Mr. Robinson, the representative of the railroad company; that the amount of money demanded by the plaintiff was for various information that he had given to the defendants; that his understanding was that within fifteen days he was to come to an agreement with the Pennsylvania Railroad Company, or its representatives, for the price, and that he was not acting as a broker for the defendants for the sale of the real estate in regard to the title. Upon the cross-examination of the plaintiff the defendants built up the theory that the plaintiff considered that the agreement between the defendants and himself was that he was to be paid for antecedent services and advice, and that he did nothing after that communication was made in the way of procuring an offer, except to go to the representative of the Pennsylvania Railroad Company, to whom he did not show any authority, and that he did not consider that such representative would deal with him but would have his dealings direct with Mr. Chatterton, and that the representative of the railroad company said that they were giving $800 a front foot. But all that was elicited from the plaintiff on cross-examination does not nullify the contract the plaintiff made with the defendants. The terms of that agreement are admitted by the defendants. The plaintiff was to be paid for the services he rendered, and it is evident that after the twenty-seventh of May, and within fifteen days therefrom, he procured an offer of $80,000 for the property, and communicated that offer to the defendants. It was not contemplated by the contract that the plaintiff should attend to any of the details of a contract, except to procure an offer over $60,000. The substance of the employment was undoubtedly to procure a purchaser and that evidently was done, and after an offer of $80,000 had been obtained, with an intimation from the plaintiff that something more could be realized, the defendants took the transaction into their own hands with the purchaser with whom the plaintiff had been negotiating and from whom the offer of $80,000 emanated, and the defendants closed the sale for $84,000.
We think this case should have gone to the jury on the testimony of the plaintiff as to what he did and in connection with the admissions of the defendants in their answer, and for that reason the judgment entered upon the nonsuit should be reversed and a new trial ordered, with costs to appellant to abide the event.
O'BRIEN, P.J., and LAUGHLIN, J., concurred; INGRAHAM, J., dissented.
I think this judgment should be affirmed. Assuming that the letter written to the plaintiff by which the plaintiff was authorized to offer the property in Thirty-second street for sale to entitle the plaintiff to recover, it must appear that he performed some services in procuring a purchaser, or had something to do with the sale of the property. The arrangement was limited to fifteen days. All that the plaintiff did, according to his own testimony, was to call upon a real estate broker representing the Pennsylvania Railroad Company and was told by him that the railroad would pay $800 a front foot for any property in the neighborhood. The plaintiff testified that he knew before this arrangement that the railroad company was offering $800 a front foot on that street and that the defendants could get that amount at any time they wanted to. He called on Douglas Robinson, the real estate broker who represented the railroad company, and his information as to the price that the railroad company was offering was confirmed. That fact he communicated to the defendants and that was all that the plaintiff had to do with the matter. There was no sale consummated within the fifteen days mentioned in the letter, and I do not think that anything that the plaintiff did was of the slightest advantage to the defendants, or had any relation to the final sale of the property. The employment of the plaintiff to effect a sale contemplated some act of his which contributed in some degree to the consummation of a sale, and this, I think, the proof failed to show.
I think the complaint was properly dismissed.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed.