Opinion
June 5, 1929.
Appeal from Supreme Court of Erie County.
Frank L. Barnet, for the appellants.
Frank F. Williams, for the respondent.
All concur. Present — SEARS, P.J., CROUCH, TAYLOR, THOMPSON and CROSBY, JJ.
The brokerage contract between the plaintiff and defendants was that defendants should pay plaintiff $900 upon his procuring a purchaser for defendants' real property who was ready, willing and able to buy the same at a price and upon terms acceptable to them.
Before plaintiff can recover his commissions under that contract, he must show either (a) that an enforcible contract of sale resulted from his efforts; or (b) that his efforts were rendered a failure by the fault of defendants, after producing a purchaser who was ready, able and willing to take on the prescribed terms. ( Sibbald v. Bethlehem Iron Co., 83 N.Y. 378. ) We think plaintiff failed to show either. He produced a purchaser who made a written offer which, on a material point, was not acceptable to defendants. Thereafter the transactions never passed beyond the stage of negotiation. So far as those negotiations resulted in tentative agreements concerning the release clause and the title insurance, they rested in parol. They were never put in writing. No acceptance in writing by defendants could have resulted in a contract acceptable to them and enforcible under section 259 Real Prop. of the Real Property Law. Nor, in our opinion, would the mortgage, signed in anticipation of a possible closing, have remedied that defect. It never became an operative document. It was never intended for delivery unless defendants made the final concessions asked for by the purchaser on the law day. In short, the purchaser produced was willing to negotiate, but never became willing to close on defendants' terms.
The judgment should be reversed on the law and facts, with costs, and the complaint dismissed, with costs.
Judgment reversed on the law and facts, with costs, and complaint dismissed, with costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made.