Clarke v. Boker

Headnote

Commissions — contract to pay commission upon sale of interest in corporate property — receiver’s sale of property — when commissions do not attach to owner’s proportionate share of proceeds.

Clarke v. Boker, 184 App. Div. 735 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 29, 1918, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.' Defendant, who Owned stocks, bonds and receiver’s certificates of the Iron Mountain Tunnel Company, whose property was in the hands of and was to be sold by a- receiver, entered into a written contract with plaintiff which provided that the plaintiff or his assigns might have an option to purchase within thirty days all of the’ stock or the bonds and the receiver’s certificates at certain sums, and then provided: “ If the parties to whom said John T. Clarke offers my bonds and receiver’s certificates and shares of stock in the Iron Mountain Tunnel Company do not purchase these bonds, certificates and shares under this option, but later on, within six months, acquire my interest in the property, I agree to pay to said Clarke a commission of 10% on the amount I receive for my

interests in said property as above specified.” Plaintiff offered the securities for sale to the American Smelting Company which smelting company did not purchase the stock or the bonds or the receiver’s certificates, but did purchase the property upon the receiver’s sale within the six months specified. The defendant received his proportionate share of the purchase money and plaintiff, claiming ten per cent of the amount under said contract, brought this action to recover the same.