Gerding v. Haskin

A real estate broker, in order to recover compensation for service as such, must prove that he found a purchaser and produced him to his principal, who was ready and willing to purchase the real estate of the latter upon his terms. The principal is entitled to know the name of the proposed purchaser, and so long as there is an uncertainty in this regard the broker is not entitled to compensation. In an action by such a broker to recover commissions, the evidence presented on behalf of plaintiff was to the effect that he went to defendants with L., who was engaged in forming a syndicate to purchase the land; that L. offered, on behalf of the syndicate, to purchase at defendants' price, giving names of persons who had then consented to join ■the syndicate, but before the syndicate was fully formed defend- . ants sold the land to other parties. Held, that plaintiff failed to ■ show performance of his contract; and that a refusal to nonsuit was . • error.

Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made January 4, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial. This action was brought by the plaintiff to recover his compensation as a broker under the employment of the- defend•ants to find for them a purchaser of their real estate situated in the city of Hew York. Defendants put in issue the material allegations of the •complaint. Upon the trial plaintiff gave evidence tending to show his employment, the amount of his compensation and what he claimed to be performance of his contract. As to the performance, the only evidence for the plaintiff was that of himself and one Lewis. He testified that after his employment he went to Haskin’s house and told him that he had a buyer for the property at his price, $110,000, and asked him how much he required to be paid on the contract; that Haskin replied, $25,000 on the delivery of the deed, $5,000 on the signing of the contract; that the next day he again went to Haskin’s house with Lewis and introduced Lewis to him and told him “he was the gentleman who represented the buyers; that Mr. Haskin said £ all right,’ and wanted to know the names of the buyers,” and he gave him the names and he entered them in a memorandum book; that Mr. Lewis then told Haskin that he had $250 in his pocket and took it out, which he said he would pay to him and take a receipt, and that any time he named he would ■draw the contract and pay him the balance of the $5,000, the deed to be delivered on the first of Hovember; that Mr. Haskin expressed satisfaction with the persons named •as buyers; that no one was present but himself and Lewis •and Haskin, and that in his interview with Haskin he named ■eight persons as proposed purchasers of the real estate. It ■appears by his cross-examination that he was required to give a bill of particulars in this action, and that one of the persons named to Haskin as a buyer was not named in the bill of particulars, and that another one who was not named to Haskin was specified in the bill of particulars. Lewis testified that ■at the interview mentioned he told Haskin he had a “ syndicate which were willing to pay the $110,000,” and that he '“ had $250 in cash and took the money out and offered it to him to pay a deposit and take his receipt for the same,” which Haskin, for reasons stated, declined then to take; that Haskin •asked him “ who the syndicate was; ” that “ I gave him some of the names of the syndicate that we had at that time ; I •don’t think the syndicate was full when I went there,” and "that then he gave the names of the persons who had then joined the syndicate, one of whom, at least, was not among "the names mentioned by the plaintiff in his evidence. He "testified further: “ When I heard that the property was for ■sale we started- in to form a syndicate to purchase it, and I got these gentlemen together, part of them, not all of them, on a •Saturday evening in our office, and submitted the offer of $110,000; at least, submitted the price of $110,000 for the-property. There was nothing paid in. Each one assented to subscribe for one share. They authorized me to go to Haslrin. and offer him $110,000 for the property, and to pay $250 on the contract, or on the purchase of the property, and if Mr. Haslrin wished any more money to call on Mr. Martin Walter and he would supply it. I was to draw on Mr. Walter for the $5,000.” He also testified that he was a member of the syndicate; that he furnished the $250 which was offered to Haslrin, and that nd one else put up any money, and the-list of proposed purchasers testified to by him differed materially from the list of names specified as purchasers by the-plaintiff. The defendants, testifying on their own behalf, denied the' employment, the agreement for compensation and. the performance of the contract by the plaintiff. At the close of the plaintiff’s evidence the defendants moved to dismiss the complaint, specifying no grounds, and their motion was denied. At the close of all the evidence on both-, sides they again moved for the dismissal of the complaint and' for the direction of a verdict in their favor, specifying no-grounds for their motions, and the motions were denied. The evidence was then submitted to the jury and they found for the plaintiff, and from the judgment in his favor the defendants appealed to the General Term, and! to this, court. The exception to the-refusal of the court to direct a verdict for the defendants, brings up for review the question whether,'upon all the evidence in the case, the plaintiff was entitled to recover or had established his cause of action. (Appleby v. F. Ins. Co., 54 N. Y. 253 ; Schwinger v. Raymond, 105 id. 648; Hemmens v. Nelson, 138 id. 517; Peake v. Bell, 7 Hun, 454; Hamilton v. T. A. R. R. Co., 13 Abb. [N. S.] 318;) The minds of the parties never met as to the terms of sale; (Susdorf v. Schmidt, 55 N. Y. 95; Sibbald v. B. I. Co., 83; id. 378; Vreeland v. Velterlein, 33 N. J. L. 247; McGavock v. Woodlief, 20 How. Pr. 221; Stillman v. Fitzgerald, 37 Minn. 186.) The pretended purchasers were never produced to the vendors for their acceptance, and until that is done the broker is not entitled to commissions. (Rapalje on Real Est. § 72; Hayden v. Giullo, 35 Mo. App. 647; Pratt v. Patterson, 7 Phila. 135; Coleman v. Garrigue, 18 Barb. 60; Martin v. Bliss, 57 Hun, 159 ; Wylie v. M. Bank, 61 N. Y. 416.) The plaintiff never produced any purchaser to the defendant 'Tappen, and as to him made no proof of the performance of Ms contract of service as broker, which would entitle him to •recover. (4 Kent’s Comm. 367, 368; Blood v. Goodrich, 9 Wend. 68; Foster v. Eager, 2 Lans. 182; Loomis v. Suprs., 6 id. 269; Yates v. Andrews, 37 N. Y. 657; Morlock v. Butler, 10 Ves. 111.) The plaintiff failed to prove that the purchasers produced were of sufñcieirt ability to perform the proposed agreement for purchase and to pay for the property. 'The purchaser must be shown to be able to perform or commissions are not earned. (Rapalje on Real Est. § 72; Duclos v. Cunningham, 102 N. Y. 678; Barnard v. Monnott, 1 Abb. Ct. App. Dec. 108; 33 How. 140; 3 Keyes, 203; Everhart v. Searle, 74 Penn. St. 256; Iselin v. Griffith, 26 Iowa, 648.) 'The plaintiff cannot recover commissions because it appears from his own testimony that he was acting as the agent of the proposed purchasers. (Duryee v. Lester, 75 N. Y. 442; Dunlap v. Richards, 2 E. D. Smith, 181; Pierce v. Thomas, 4 id. 354; Cassard v. Hinman, 6 Bosw. 8; Rice v. Wood, 113 Mass. 133; Gordon v. Clapp, Id. 335; Bell v. McConnell, 37 Ohio St. 396 ; Lynch v. Fallon, 11 R. I. 311; Connelly v. Smith, 142 Penn. St. 25.) Each tenant in common could •convey or contract to convey only his own share. The •employment of plaintiff as broker by one defendant does not bind the other defendant. Hence, if either party is held not liable for commissions, and the other is held liable, the verdict is excessive and should be reduced one-half. ( Van Doren v. Balty, 11 Hun, 241; Bowman v. Travis, 54 NM. Y. 640 ; McLean v. McLean, 96 id. 655; Tuers v. Tuers, 100 id. 200.) To entitle the plaintiff to commissions as broker he must have established by competent proof employment by the defendants to effect a sale of the property Upon certain specified terms; that he has found a purchaser of sufficient responsibility who is willing to take the property upon the terms named. (Duelos v. Cuningham, 102 N. Y. 678.) Upon the testimony of plaintiff and his witness Eickwort it is clear that the transaction, so far as Tappen is concerned, was not a gen-, eral employment of plaintiff as a broker to sell the property, but an unsuccessful attempt on the part of plaintiff to buy the property for Eickwort, the parties not agreeing upon the price, but Tappen promising to pay a commission if the particular sale then under negotiation should be consummated with Has-kin’s consent. Ho valid performance was shown. Ho Iona ■fide purchaser on Haskin’s terms was secured. At most it was a tentative affair, not an accomplished fact. (Condict v. Cowdrey, 139 N. Y. 273.) The exception to defendants’ motion to direct a verdict for the defendants was well taken, and the motion for a new trial on the minutes should have 6 been granted. Plaintiff, as-matter of law upon the undisputed evidence, ought not tp have recovered, and should have been nonsuited. (Kaare v. T. S. & I. Co., 139 N. Y. 369; Sickles v. Flanagan, 79 id. 224.) The broker earns his. commission when he procures a person able and willing to purchase on his employer’s terms. (Stillman v. Mitchell, 2 Robt. 523 ; Barnard v. Mannot, 3 Keyes, 203 ; 33 How. Pr. 440; Levy v. Coogan, 30 N. Y. S. R. 553 ; Duclos v. Cunningham, 102 N. Y. 678.) The ability of the person who is willing tó buy will be presumed in the absence of evidence to the contrary. (Hart v. Hoffman, 44 How. Pr, 168.) The ease does not contain a certificate that all the evidence is-before the court, and in the absence of such a certificate the court will not review disputed questions of fact. (Levi v. Marshall, 30 N. Y. S. R. 283; Porter v. Penn, 107 N. Y. 531.) The counsel for the defendants requested the court to charge the jury “ that if the jury shall accept the testimony of Judge Tappen that no commissions should be paid until the deed actually passed that no verdict can be rendered for the plaintiff.” This was properly refused. (McGrath v„ M. L. Ins. Co., 6 N. Y. S. R. 376; Dolan v. D. & H. C. Co., 71 N. Y. 285.)