Phelan v. Gardner

By the Court, Niles, J.:

1. The defendant employed the plaintiff as his broker, to sell for him certain land at an agreed commission of five per cent on the amount of the sale. The plaintiff procured and brought to the defendant one Cush eon, who agreed with the defendant, verbally, to purchase the land for the sum of thirty thousand dollars. The defendant gave Cush eon a memorandum in writing, by which he promised to sell to him for the price named, and to give him fifteen days to complete the search and purchase of the land. Before the expiration of the fifteen days, Cusheon tendered to the defendant a performance in accordance with the agreement, and was informed that the land had been sold to another party. The plaintiff brings suit to recover the amount of his commissions.

*311 It is not contended upon either part that there was a valid and binding contract of sale between Cusheon and the defendant. The defendant claims that for this reason the plaintiff’s commission was not earned. This theory is untenable. The plaintiff could do no more than procure a purchaser who was acceptable to the defendant, and willing and able to purchase the land upon terms satisfactory to him. He could not control the will of the defendant or force him to make a binding contract with the purchaser, or prevent him from selling to another. In the absence of an agreement to that effect, the principal cannot refuse to pay the broker’s commissions upon the ground that he did not choose to make the sale. He cannot avoid the contract by his voluntary act disabling himself from performance.

2. The judgment roll in the action of forcible entry and detainer was properly excluded. The issue in that case was whether a certain sum of money had been paid by the defendant and received by plaintiff in satisfaction, discharge, and settlement of the cause of action involved in that suit. It was alleged in the answer in that case, and found by the Court, that the money was paid and received in discharge and settlement of this present action as well as of the one then pending. But this was a finding without the issues made, and unnecessary in the decision of that case. It was not necessary that the Court should find that the payment to plaintiff was made and received in “ satisfaction, discharge, and settlement of every claim, debt, or cause of action,” but only of the cause of action then under consideration. At most, the fact of the settlement of this case could be only incidentally in controversy in the County Court. It is even difficult to see how it could be in controversy at all. A judgment is only conclusive upon questions involved in the suit, and upon which it depends, or upon matters which might have been litigated and decided in the suit.

3. It was competent for plaintiff to rebut defendant’s evi *312 deuce of the settlement and receipt by proof that at the time of the transaction the plaintiff was incapable of contracting intelligently by reason of intoxication. The proof, upon this point was conflicting. There was evidence tending to show that the plaintiff was intoxicated when he signed the receipt, and other evidence to the effect that he was then sober, but that the completion of the business was followed by a protracted carouse. The Court permitted the plaintiff’s wife to testify that he was brought to his home by the defendant and another person several hours after the time when the receipt was shown to have been signed, and in a state of thorough intoxication. The fact to be arrived at was the mental condition of the plaintiff at the time the business was transacted. We cannot say that under the circumstances of the case the Court erred in holding that his condition a few hours later in the same evening would throw some light upon the question under consideration.

Judgment and order affirmed.