Majority
p. 356Alonzo Cushman, assignee of John S. Kelso, v. Ottaviano Gori.
Headnote
In an action to recover for services as broker, in selling land of defendant, it appeared that the purchaser saw the lot with the defendant’s name posted upon it, and upon an adjoining lot the name of the plaintiff's assignor, who is a broker. He took down the address of both; and calling first upon the broker, the latter, without any authority, offered to sell him the lot in question. The broker subsequently procured authority from the wife of defendant to sell the lot for $5,000; but, before he had any further negotiation with the purchaser, the latter negotiated a purchase from the defendant himself at $4,500.EeU, that the broker had done nothing to entitle him to any commissions.
-Apptcat, by plaintiff from a judgment of tbe Third District Court. This action was brought to recover $100 for services alleged to bave been rendered to defendant by tbe assignor of • tbe plaintiff, as a broker, in negotiating tbe sale of a lot of land in New York city, owned by defendant, to one Kerr. Tbe evidence in tbe cause is sufficiently stated in tbe opinion of tbe court. The justice rendered judgment against tbe claim, and tbe plaintiff appealed.
Justm Palmer, for tbe appellant.
8. W. & B. B. Boosevelt, for tbe respondent.
The amended return presents a state of facts which would warrant tbe justice in concluding that Kelso bad nothing to do with effecting tbe sale of tbe lot to Kerr. Kerr saw tbe lot in question with Gori’s name and address on it, which be took down, intending to see Gori about it. He at tbe same time saw other lots, one of wbicb adjoined tbe lot in question, which had Kelso’s address on them, wbicb be took down, intending to see him also. He called on Kelso first, and Kelso, who then had no authority, offered to sell tbe lot in question for $5,000; hut Kerr made him no offer, intending to see Gori. Some
p. 357
months afterwards Kelso called on Mrs. Gori, and was told that Gori would sell the lot, and that the price was $5,000. Kelso offered, if she would agree to give him $100, to sell the lot, which she agreed to do. He never saw Kerr after that. But Kerr called on Mrs. Gori, learned who was the owner of the lot, and bought it from him for $4,500. It is plain upon such a state of facts, that Kelso had nothing to do with effecting the sale of the lot, and the-justice, upon the evidence, was right in so concluding.
Judgment affirmed.