Opinion
February 28, 1913.
George A. Strong, for the appellant.
William G. Cooke, for the respondent.
Defendant having demurred to the complaint in this action upon two grounds, first, that it did not state facts sufficient to constitute a cause of action, and second, that there was a defect of parties defendant, therewith tendering to plaintiff a better plea, a motion was made by plaintiff for judgment on the pleadings, and from an order granting such motion this appeal comes.
The question involved is a very simple one under the law of contracts. To recover upon a contract to pay money for services there must be parties competent to contract, subject-matter, consideration and performance or its equivalent. A lack of either element is fatal.
This complaint alleges the making of a written contract on July 17, 1912, between defendant, as executor of the last will and testament of William A. Wheelock, deceased, and one Gertrude Horowitz, for an exchange of lands situated in the borough of Manhattan, the deeds to be delivered on or before August fifteenth of the same year. This contract was conditional upon said Horowitz on or before August 5, 1912, "procuring a loan of $75,000 on the property of the party of the first part" (defendant). Notice of the success or failure of said Horowitz to procure this loan was to be given defendant on or before the date named. By consent of the parties to the contract, the time within which such loan was to be procured was extended to August eighth, and the amount thereof reduced to $60,000. Before August eighth the said loan was secured, and on that day notice was given. Prior to the law day fixed in the contract for exchange, and on August twelfth, defendant repudiated the contract and so notified Horowitz. The complaint further alleges that after the making of the contract of July seventeenth, at the request of Gertrude Horowitz and defendant, plaintiff, upon his own credit and responsibility, employed and procured the Title Insurance and Trust Company to examine the title of the properties to be exchanged, in order to enable said Horowitz to obtain the loan provided for in said contract. But this allegation is coupled with the further allegation that the procurement of this loan by plaintiff was in consideration of the express promise of said Horowitz to pay him the sum of $3,000 therefor, which sum was subsequently reduced and fixed at $2,400. Although not separately stated as required by the Code of Civil Procedure (§ 483), plaintiff has attempted to state two separate and distinct causes of action, one for commissions for effecting an exchange of the properties referred to, and the other for services in procuring a loan to Horowitz upon one of them. The failure to separately state these does not preclude thus considering them. ( Wiles v. Suydam, 64 N.Y. 173. ) As to each, plaintiff has failed. So far as the cause of action arising out of the claim for compensation for effecting an exchange of properties is concerned, plaintiff's complaint is faulty in that it fails to allege consideration for the contract sought to be enforced. Passing without discussion the very serious question whether the complaint alleges a contract between defendant and Horowitz which became effective by delivery, nowhere does it allege plaintiff's employment by defendant, and the rendition of services in reliance upon the strength thereof. It is true that the contract between defendant and Horowitz contains these words: "The sellers hereby agree that Alfred A. Hevia (meaning the plaintiff) brought about this sale and agree to pay the broker's commission of 1% to him, and in the event that the title shall close and the deeds be delivered." But this is nothing more than an evidentiary fact by way of admission, not made to plaintiff but to a third person, that plaintiff brought about the sale. ( Notman v. Galveston Steamship Co., 137 App. Div. 851. ) But even if plaintiff did bring about the sale, there must be an agreement, express or implied, to compensate him therefor. ( White v. Molloy, 9 App. Div. 101.) There is no allegation of an express agreement. If plaintiff was regularly engaged in the business of real estate brokerage, conscious acceptance of his services in this capacity might raise an implied contract to pay therefor, but the same rule does not otherwise apply. ( Hurd v. Lee, 132 App. Div. 110; Main v. Eagle, 1 E.D. Smith, 619; Fraser v. Born, 33 Misc. Rep. 591.) There is no allegation in the complaint as to the character of plaintiff's business, and for anything therein disclosed, plaintiff, without defendant's knowledge, and as a mere friendly act to one or both of the parties, or from some purpose of his own advantage, may have busied himself to bring about the execution of the contract. The promise to pay, contained in the clause above referred to, was not made to plaintiff, nor to any one obligated to plaintiff so that plaintiff might take advantage of such promise, and being executory in character, as all of the services in connection therewith, if any were rendered, were past services, such promise rests upon no consideration, and is unenforcible.
So with regard to the cause of action which plaintiff attempts to state in connection with the loan transaction. Reading the allegations above referred to respecting defendant's request to plaintiff in connection with the other allegation of Horowitz's promise to pay him therefor, we conclude that whatever services were rendered were in reliance upon Horowitz's express promise to pay, and not upon any implied contract arising out of plaintiff's request. But if the said Horowitz is not solely liable therefor, then the complaint must be deemed to allege a joint employment by defendant and said Horowitz, and the demurrer upon the ground of defect of parties is well taken.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
JENKS, P.J., HIRSCHBERG, WOODWARD and RICH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.