Cook v. Kroemeke — 4 Daly (N.Y.) 268

Majority

p. 268

Henry E. Cook and another v. Elizabeth Kroemeke.

Headnote

In an, action by real estate brokers, for commissions, the plaintiffs have made out a prima facie case when they have proved the introduction, by them, to defendant of a person willing to purchase on the terms at which they have been authorized by defendant to sell.

It is not necessary for them to prove, in the first instance, that the person introduced was of sufficient pecuniary ability to pay the price. On this question, the burden of proof is on the defendant to prove the contrary.

Nor is the broker obliged to cause the party willing to purchase to tender to the seller a written agreement to that effect.

Appeal by plaintiffs from a judgment of the 7th District Court, dismissing the complaint. The facts are stated in the opinion.

A. B. Clarke, for appellants.

J. E. Berry, for respondent.

—The plaintiffs were real estate brokers, and were employed by the defendant to sell the house and lot, Ño. 341West 54th street, at the price of $7,250. They found and produced to her two persons successively, who were willing to purchase on her terms, but she declined to execute a contract of sale, or to sell the property. These facts were proved at the trial by the plaintiff, Cook, and by Michael Duly and John Gillford, the two persons who were willing to become purchasers. Duly presented to her a contract, which she refused to sign, but no reason appears to have been given for such refusal. In Gillford’s case, she appointed a time to meet him at the plaintiffs’, and although he was there, she failed to appear, but no reason for her not attending appears in evidence. Without giving any evidence whatever, either as to her reasons for not accepting either Duly or Gillford, or for not .selling to them,- or to any other effect, defendant, at the close of plaintiffs’ testimony, moved to dismiss the complaint on the grounds: 1st, That plaintiffs had not proved the introduction of a man of sufficient pecuniary responsibility to the defendant; 2d, That the contract submitted to defendant was not one that could be enforced in a court of equity. The Justice thereupon dismissed the complaint, rendering judgment therefor against the plaintiffs in favor of defendant.

The justice erred. The first ground on which defendant moved to dismiss was not well taken. It was for defendant to prove, on the trial that the persons introduced to her as purchasers were not able, pecuniarily, to pay the price they •agreed, or were willing to contract to give. Until that was shown they are each presumed to be solvent and able to pay what they expressed a readiness to pay (Hart v. Hoffmans, Ct. Appeals, June, 1871).

The second ground of motion to dismiss was not well taken. It was not the broker’s duty to present a purchaser with a contract ready drawn and executed to tender to his principal. It is enough, that under the terms of his employment by his principal he produces a person able and willing to take the prop

p. 270

erty and pay the price on the vendor’s terms. No contract was presented by Gillford to the defendant nor tendered him by her. The burden was on her to show why she refused to keep her appointment with him. The brokers appear to have performed their duty (Barnard v. Monnot, 1 Abb. Ct. App. Dec. 108 ; s. c., 3 Keyes, 204; Moses v. Birrling, 31 N. Y. 464 ).

The judgment should be reversed.

Judgment reversed.

Footnotes

* Present, Daly, Oh. J., Robinson and J. F. Daly, JJ,