Sewell v. Collison — 123 A.D. 586

Majority

p. 586

Samuel D. Sewell and Harry Sewell, Doing Business under the Firm Name and Style of Sewell Brothers, Respondents, v. Charles H. Collison, Appellant.

Second Department,

January 10, 1908.

Headnote

Evidence — principal and agent — broker’s action for commissions — proof of commissions paid to other brokers.

On the issue as to whether a defendant, sued for commissions for procuring a sale of land, was guilty bf bad faith in terminating the plaintiff’s employment and selling the property through other brokers to the same person produced by the .plaintiff, the defendant may show that he paid commissions to the brokers through whom the sale was finally effected. The evidence is relevant, as it tends to. show that the defendant did not terminate the plaintiff's agency for the purpose of avoiding payment of commissions. .

Appeal by the defendant, Charles H. Collison, from a judgment of the Municipal Court of the city of New-York, borough of Richmond, iii favor, of the plaintiffs, rendered on the 11th day of June 1907.

Ernest M. Garbe, for the appellant.

John M. Braisted, for the respondents.

The plaintiffs were real estate brokers and have had a judgment against the defendant for the amount of commissions for the sale, of certain real éstate owned by the defendant. It appears that alter the plaintiffs had done considerable work in trying to effectuate a sale of the property,, the defendant withdrew it from their hands and attempted to terminate the agency, and soon afterward sold it to the person whom the plaintiffs had interested and whom the latter had introduced to the defendant. Upon this proof and the incidents that went with it, the plaintiffs charged, upon the trial, that the defendant acted in bad faith in attempting-to terminate the agency, and that his purpose in doing so was to escape the payment of commissions to the- plaintiffs. The sale was actually made through another firm of brokers. On direct examination the defendant was asked: “ Did you -pay Griffith & Son ” (the other brokers) “ com

p. 587

mission for the sale of this property ? ” The question was objected to by the plaintiffs and the objection was sustained. This ruling of the court was error, for which the judgment must be reversed.

The issue of the purpose of the defendant to escape paying commissions to the plaintiffs was tendered by them. A common method of evidencing design'or plan is, by showing conduct circumstantially indicating it. Evidence of the conduct of the defendant-in paying commissions to other brokers was relevant upon this issue, because the conduct tends to reflect the design or purpose, in that under usual circumstances the defendant would not withdraw the property from one broker for the purpose, of avoiding the payment of commissions, and straightway pay commissions to another broker.

The judgment should be reversed and a new trial ordered, costs to abide the event. . . <

Woodward, Jerks, Gayror and Miller, JJ., concurred.

Judgment of the Municipal Court reversed atid new trial ordered, costs to abide the event.