Browning v. Fox

Headnote

Conversion — principal and agent — action to recover money alleged to have been wrongfully detained by real estate agent out of rents collected — modification of contract — accord and satisfaction.

Browning v. Fox, 183 App. Div. 778 , affirmed.

Appeal from a judgment entered July 25, 1918, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendants entered upon the report of a referee and directing judgment in favor of plaintiff upon new findings. The action, which was in conversion, was brought by the plaintiff, the owner of two business buildings in the city of New York, against the defendant real estate agents who managed the buildings for him, to recover the sum of $1,907.63, which plaintiff claims the defendants retained and converted to their own use out of rents collected. The answer interposed as counterclaims : (1) That there had been a modification of the contract for the renting of the Fortieth street building agreed upon between the parties after the making of the original contract, and under such agreement respondent agreed to hold appellants harmless with respect to any excess of moneys paid out for “ commissions, expenses and running expenses ” over and above their own commissions. This excess was claimed to amount to $1,323.20. (2) That respondent canceled the contract for the leasing of the Fortieth street building within one year after collections began and thereby under said contract, appellants became entitled to the sum of $2,345.75, which was the total paid by them to brokers for effecting leases in that building. In addition to these counterclaims, the appellants alleged as a separate defense to uhe complaint that on March 5, 1914, a balance was

struck by the parties hereto which constituted an accord and satisfaction. The Appellate Division decided that no modification of the Fortieth street contract was proven; that collections on the Fortieth street building began on or about September 24, 1912, at the time the first deposit or advance payment was made, and refused to find an accord and satisfaction.