Opinion
March, 1935.
Action on contract to recover commissions for the sale of a business. The complaint was dismissed at the close of the plaintiff's case on the ground, in effect, that the purchase of the business was an unusual or extraordinary matter which required authorization of the board of directors of the proposed corporate purchaser, that the president of that corporation was without authority, as such, to bind it as purchaser, and that in the absence of such authority there was no purchaser who was ready, willing and able to buy. While it may be that, on the proof adduced by the plaintiff, the president of the proposed purchaser did not have authority to bind the corporation ( Bankers Trust Co. v. International Railway Co., 207 App. Div. 579; affd., 239 N.Y. 619), a question which we do not now decide, this was not an irrevocably fatal defect. If lack of authority had been relied on by the defendant, and that was the obstacle in the path of the successful consummation of the contract to purchase, the board of directors of the proposed purchaser could have cured the defect by authorization or ratification. The deal fell through on an entirely different aspect, namely, that the parties could not agree on the purchase price, which defendant set at approximately $240,000 over and above the $3,000,000 which he had fixed in employing the plaintiff. The defendant is estopped from questioning the authority of the one with whom he dealt on behalf of the proposed purchaser. ( Mooney v. Elder, 56 N.Y. 238; Duclos v. Cunningham, 102 id. 678; Matter of New York, Westchester Boston R. Co., 151 App. Div. 50; Rosenblatt v. Bergen, 237 N.Y. 88; Ostroff v. Doctor, 238 id. 264; Goldman v. Goldman Realty Corporation, 227 App. Div. 28.) Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. Hagarty, Carswell, Scudder, Tompkins and Davis, JJ., concur.