Majority
p. 916SEYMOUR v. THOMPSON. (Supreme Court, Appellate Division, Second Department. June 15, 1906.) Argued before HIRSCHBERG, P. J., and WOODWARD, GAY-NOR, RICH, and MILDER, JJ.
Headnote
Contracts—Construction—Sale of Property—Division of Proceeds.A contract specified that of all over a certain sum received for a lot owned by defendant, the half should be divided with the plaintiff. Defendant built a house on the lot, and sold the premises, receiving down only a small portion of the price. Held, that plaintiff could not recover in an action at law, merely on the ground that there was an alleged profit to defendant in the transaction above the price specified in the contract, but it was incumbent on him to show a receipt of money for the lot above such specified price in addition to the cost of the house.
Appeal from Municipal Court, Borough of Queens, Third District.
Action by Charles Seymour against Alexander C. Thompson. Erom ' a judgment in favor of defendant, plaintiff appeals.
Affirmed.
J. Baldwin Hand, for appellant.
Clarence Edwards, for respondent.
The plaintiff seeks to recover under the following contract or agreement:
“This contract made and entered into between A. C. Thompson and Charles Seymour for the sale of lot No. 15. * " * * It is understood and agreed that all over $250 the said A. C. Thompson gets for said lot; the half of the increase is to be divided with the said Chas. Seymour less expenses. A. C. Thompson [Seal].”
Just what was contemplated by this agreemnt is not very clear, but it would seem to suggest that the plaintiff was to secure a purchaser;
p. 917
for the lot in question had been purchased by the defendant, and the plaintiff had been paid a commission by the vendor for procuring the purchaser. The evidence discloses that the lot, as it stood at the time of the agreement, was never sold. The defendant about a year later constructed a house upon the premises and finally sold the same for $3,200, taking in payment $500 in cash and an agreement on the part of the purchaser to pay $14 per month, with interest, until the same was fully paid. It is claimed by the plaintiff that this transaction resulted in a profit of over $250 above the agreed price of the premises, and he seeks to recover one-half of the profits. It seems to us very doubtful if the plaintiff has any claim against the defendant, whose evidence indicates an actual loss in the transaction after paying expenses, but in any event, in an action at law he was bound to show that the defendant had received for the lot more than $250, and the evidence is undisputed that he has received only $500 on account, with three monthly installments of $14 each. By the terms of the contract, conceding it to be valid, the money is not yet due.
Therefore the judgment in favor of the defendant should be affirmed.
Judgment of the Municipal Court affirmed, with costs. All concur.