Barnard v. Monnot — 33 How. Pr. 440

Majority

p. 440

COURT OF APPEALS.

Chauncey Barnard agt. John B. Monnot.

Headnote

The duty of a broker of real estate consists in bringing the minds'of the vendor and vendee to an agreement. He can do no more; and is, therefore, then entitled to Ms commissions, whether the agreement between the parties has been reduced to writing or not.

September Term, 1866

The plaintiff brought his action in the supreme court against the defendant, to recover his compensation as a real estate broker, amounting to $2,500, in effecting the sale of the “ Hippodrome ” property in the city of Hew York.

On the trial, the plaintiff was non-suited. The judgment was affirmed at the general term of the first district.

Horace Barnard, for appellant.

Edgar Logan, for respondent.

The facts in this case may be stated as follows: The plaintiff, a real estate broker in the city of Hew York, was employed by the defendant to negotiate a sale of certain real property of the defendant, known as the Hippodrome property, for the price of $250,000.

He brought his negotiation to a successful issue on the 31st of May, 1855, when the defendant and one Amos R. Eno came to an agreement, which was complete in all its terms, for the sale and purchase of the property. The defendant agreed to sell to Eno the Hippodrome property for $250,000, and Eno agreed to buy it at that price, to be paid as follows : $20,000 in cash; Ho. 555 Broadway at $120,000, and 74 Broadway at $110,000. To these terms both parties were agreed.

The parties having agreed upon the terms of their bargain, set out for the office of Mr. Wetmore, Eno’s lawyer, to put the agreement in writing. They stopped on' the way at the office of Mr. Logan, Monnot’s lawyer, and stated to him the terms of the agreement. At Mr. Wetmore’s office

p. 441

the terms were again stated, and it was arranged that Mr. Logan should draw the contract.

Subsequently, Mr. Logan, on behalf of Monnot, objected to certain leases which were on the pieces of property which Monnot was to receive, though they had been discussed and agreed upon by Monnot and Eno. Upon this objection being stated, Eno offered to remove the leases, and give the property clear of them.

Eno was ready to carry out the contract, and no farther objection was made on account of the leases. Monnot subsequently declined to perform the contract, alleging the unwillingness of his wife to its completion. Another bargain was therefore made and completed between Eno and the defendant, by which Eno purchased of the defendant. a portion of the Hippodrome property, to the value of $170,-000, and paid him for it by 74 Broadway, and assuming certain mortgages.

The plaintiff was non-suited, upon the ground that he could not maintain an action for his compensation until the agreement for the sale of the property had been reduced to writing and signed by the parties. The general term, by their written opinion, concurred in this view of the law.

I think the decision was erroneous. The duty of the broker consisted in bringing the minds of the vendor and the vendee to an agreement. He could do no more. He had no power to execute a contract, to pay the money for the one side, to convey the land on the part of the other, or to compel the performance by either of their duties. The plaintiff produced a purchaser, willing and ready to accept the terms of the defendant, and able to perform the obligation on his part. He had then earned his commissions, and it would be a singular conclusion of the law that the refusal of his employer to complete the bargain, should destroy his right to them. His right to the commissions depended upon the successful performance of the service, and upon nothing else. • On the one hand, however much time he might devote to the interests of the defendant, unless he was successful in finding a purchaser, he was entitled to no com

p. 442

pensation; and on the other, his right was perfect so soon as that condition was performed. (Jones agt. Bierling, 31 N. Y. 462 ; McGaroch agt. Wuralief, 20 How. U. S. 221; Koch agt. Emmsley, 22 Id. 69.) In the case last cited, as in the present, the broad ground was assumed “ that no contract of this character can be specifically enforced, unless it has been fully executed ” (p. 73). The court says: “ Where the vendor is satisfied with the terms made by himself through the broker to the ■ purchaser, and no valid objection can be stated to the contract, it would seem to be clear that the commission of the agent was due, and ought to be paid. It would be a novel principle, if the vendor might capriciously defeat his own contract with his agent, by refusing to pay him, when he had done all that he was bound to do. The agent might well undertake to procure a purchaser, but this being done, his labor and expense could not avail him, as he could not coerce a willingness to pay the commission which the vendor had agreed to pay. Such a state of things could only arise from an express understanding that the vendor was to pay nothing unless he chose to make the sale.”

Judgment should be reversed, and a new trial ordered. .

Judgment accordingly.

Cases cited

Moses v. Bierling 31 N. Y. 462 N.Y. p. 442