Gorman v. Scholle — 1 N.Y. St. Rep. 610

Majority

p. 610

John Gorman, respondent, v. Jacob Scholle, appellant.

(New York Common Pleas,

General Term,

Filed June 7, 1886.)

Headnote

Bbokees—Beokebage—When eaened.

Where the plaintiff was a broker, procured a bona fide purchaser, ready to buy the lots on the terms fixed by the defendant, when he authorized plaintff to offer them for sale. Held, that, although the sale fell through on account of a new condition imposed after the parties came together, the broker had performed his contract, and was entitled to his commissions.

Appeal from a judgment of the city court, affirming a judgment entered on the report of a referee.

It appears from the evidence that the 'plaintiff was a real estate broker, and that some time prior to March, 1884, the defendant employed him to procure a cash purchaser for six lots of land, comer of Third avenue and Eighty-fourth street, in this city, at the price

p. 611

of $90,000. It also appears that the plaintiff, under such employment, did procure a purchaser at the price asked; brought the parties together, on the 20th day of March, 1884, and the purchaser, in good faith, agreed to buy the property at the price of $90,000; and that the defendant and the purchaser agreed on the terms and conditions on which the sale and purchase should be made, defendant waiving the requirement that the sale should be for cash, and agreeing to take a part of the price in a purchase money mortgage. He, however, declined to execute a written agreement until he had consulted counsel as to the effect of a lease, then on said premises, to one Eggers.

The said purchaser was accepted by defendant, subject only to the advice of his counsel as to the effect of this lease. Thereupon the defendant promised to pay plaintiff his commission.

After consulting counsel, defendant declined to enter into a contract with the purchaser for a sale of the property, except subject to the right of Eggers to remove from the lot a stable which was thereon. The purchaser refused to take the property subject to such right, but offered to take the lots as they stood at the price of $90,000.

When the defendant employed plaintiff to procure a purchaser of the lots for $90,000, no condition was made that the purchaser should take title subject to the removal of this stable, and nothing was said in relation thereto until the purchaser had been procured.

The sale fell through for the sole reason that the defendant declined to sell, except subject to the right of the tenant to remove the stable.

The referee has found that the liability of the defendant was not altered by the fact—if it be a fact—that the tenant had a right to remove the stable, such fact and right not having been made a part of the terms upon which plaintiff was to procure a purchaser, and nothing having been said on the subject until after a purchaser had been procured.

We have no doubt as to the correctness of the referee’s decision on that question; nor have we any doubt that, on the state of facts presented, the plaintiff performed his contract and was entitled to his commissions. He did procure a bona fide purchaser, ready to buy the lots on the terms fixed by the defendant, when he authorized jhámtiff to offer them.

We have read the opinion of the referee, and think his decision, and the reason upon which it is based, are correct, and that the judgment should be affirmed, with costs.