Hotchkiss v. Kuchler — 86 A.D. 265

Majority

p. 265

Philo P. Hotchkiss, Appellant, v. Frank X. Kuchler, Respondent.

Headnote

Ejection, upon a specified groundj of a loan procured by a broker — it precludes the principal from, setting up, in an action by the broker for his commissions, another ground of objection.

Where a person, who employs a broker to secure a loan for him, refuses to accept the loan from a responsible party procured by the broker solely because he is dissatisfied with the amount of the commission to which the broker claims to be entitled, he cannot, upon the trial of an action brought against him by the

p. 266

broker to recover his commission, justify his refusal to accept the loan upon ■ the ground that the letter in which the party procured, by the broker accepted the application for the loan contained a provision that the application was . approved, “provided the rules of this company are complied with and' the loan is accepted within ten days from the date of this notice.” '

Appeal by the plaintiff, Philo P. Hotchkiss, from a. judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 10th day of February, 1903,

Charles J. Ryan, for the appellant.

Joseph H. Breaznell, for the respondent.

This is an action to recover $200 as broker’s commissions in procuring a loan for the defendant upon certain factory property in the borough of Brooklyn, The plaintiff claims to have found a party, the Title Guarantee and Trust Company, able and willing to make the loan upon the terms desired by the defendant, and although the loan was not effected, its non-acceptance appears to have been entirely due to the defendant’s own act.

In expressing its willingness to make the loan, the Title Guarantee Company stated that the application therefor was approved “ provided the rules of this company are complied With and the loan is accepted within ten days from the date of this notice.” The defendant now argues in support of the judgment in his favor that this acceptance by the Title Guarantee and Trust Company, upon condition that its rules should be complied with, introduced a new element into the transaction, and that the procurement of the loan on this condition was not a fulfillment by the plaintiff of his contract of employment. It is to be observed, however, that the defendant based his refusal to pay the plaintiff, not upon the ground that the terms upon which the Title Guarantee and Trust Company proposed to make the loan were unsatisfactory, but upon the ground that the plaintiff had undertaken to charge three' per cent for his services. This; the defendant declared to be too much, though he avowed his willingness to pay one per cent! Under these circumstances the defendant cannot justify his refusal to accept the loan

p. 267

upon the ground that the terms of the loaner’s acceptance were unsatisfactory. (Mooney v. Elder, 56 N. Y. 238 .)

The plaintiff may not have been entitled to recover three per cent, but he was entitled to the fair and reasonable value of his services, as the proof showed that he had procured a party able and willing to make the loan on terms satisfactory to the defendant, (Chambers v. Peters, 30 Misc. Rep. 756 .)

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

Woodward, Hirschberg, Jerks and Hooker, JJ., concurred.

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

Cases cited

Mooney v. Elder 56 N. Y. 238 N.Y. 1874-03-31 p. 267
Chambers v. Peters 30 Misc. Rep. 756 N.Y. App. Term 1900-03-09 p. 267