Travis v. Graham — 23 A.D. 214

Majority

p. 214

Egbert B. Travis, Appellant, v. Johh D. Graham, Respondent.

Headnote

Seal estate broker —failure of the purchaser to pay for the land—it does not defea t the broker's right to commissions.

An owner of real property who employs a broker to effect a sale thereof, and accepts and conveys the premises to a purchaser secured by the broker, cannot avail himself of the objection that the purchaser did not pay the consideration of the conveyance in order to defeat an action by the broker to recover his commissions.

Appeal by the plaintiff, Egbert B. Travis, from a judgment .of the Supreme. Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 9th day of June, 1897, upon the verdict of a jury directed by the court.

Eugene B. Travis, for the appellant.

No appearance for the respondent.

This is an action by a broker to recover commissions for negoT ■tiating a sale of real estate. After the evidence was all in on both sides, and counsel had summed up the case, the learned judge who presided at the trial, without any motion' to that effect, directed • the jury to find a verdict for the defendant: He stated his reasons for taking this course in a short oral opinion, in which he assumed that there was sufficient proof to warrant the jury in finding that the defendant had employed the plaintiff to procure a .purchaser of his property, and that the. plaintiff actually did produce a purchaser who was ready to buy, and to whom the defendant subsequently conveyed the.premises; but he held, in substance, that the plaintiff was not entitled .to recover anything, because the customer so procured did not, in fact, pay the money which he agreed to pay as' a consideration for the conveyance. •

We are of the opinion that one who employs a real estate broker to negotiate a sale of land cannot avail himself of the objection that the customer procured by the broker is not able to pay for the premises, after he has accepted such purchaser as satisfactory and has conveyed the property to him. The broker undertakes to bring the

p. 215

minds of the seller and buyer together in an agreement to sell and purchase, wherein the price and terms shall be satisfactory to both. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 382 ; Folinsbee v. Sawyer, 28 N. Y. Supp. 698 .) There can be no more conclusive evidence that he has done this than the execution and delivery of a deed of the land by the vendor to the purchaser.

The proof indicated that the consideration for the conveyance was very much less than the sum stated in the complaint, but, upon all the evidence in the case, the jury, if they believed the testimony of the plaintiff, might well have awarded him compensation for his services in some amount, and it was, therefore, error to direct a verdict for the defendant.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.