Knight v. Brown

Headnote

Knight v. Brown, 162 App. Div. 438 , appeal dismissed.

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 13, 1914, reversing a judgment in favor of defendants entered upon a verdict and granting a new trial in an action to recover from the defendants commissions upon the sale of a farm owned by them as tenants of the entirety. The* complaint alleged that the defendants employed the plaintiff to procure a purchaser for a farm owned by them, and agreed to pay plaintiff for such services a commission of $100; that plaintiff did procure a purchaser, one Walter W. Croft, between whom and the* plaintiff and defendants it. was mutually agreed that after the said Croft obtained title to the prdperty he should pay $100 of the purchase price direct to the plaintiff for his commission, instead of to the defendants, and also assume two mortgages then on the property as a part of the purchase price; that thereupon Croft drew his check for the balance of the purchase price, less the aggregate amount of said commission and mortgages, to the order of the defendant Sherman Brown, which check indorsed by said defendant, together with a deed of the said farm to the said Croft, duly executed and acknowledged by the defendants, were thereupon delivered in escrow to one Daniel L. Maxfield, under an agreement by the defendants that the said Maxfield should forward the check for collection, and upon payment of the amount thereof deliver said deed to the plaintiff for Croft, in consideration of which agreement on the part of the defendants the plaintiff agreed to wait

for his $100 commission and to take the same from Croft-; that thereafter, and before the delivery to Croft of the deed and before the payment of the check, the defendants caused payment of said check to be stopped, refused delivery of the deed to Croft and repudiated the sale, by reason of which facts plaintiff was deprived of his right to collect his commission from the purchaser Croft under the contingent novation agreement, and the defendants became liable therefor under their original agreement. The answer denied the employment, alleged a parol agreement to sell and that the purchaser agreed to make the payment alleged.