Condict v. Cowdrey — 23 N.Y. St. Rep. 600

Majority

p. 600

Jonathan D. Condict, Pl’ff and Resp’t, v. Jane H. Cowdrey, Def’t and App’lt.

(New York Superior Court, General Term,

Filed May 6, 1889.)

Headnote

1. Broker — Commississions — Duty of broker — When commissions EARNED.

The duty that a broker undertakes as a condition of his right to demand commissions, is to bring the buyer and seller to an agreement. There must be a meeting of the minds of the buyer and seller, produced by his agency, and a binding agreement made between them. The commissions are earned when the broker produces to his principal a party, with whom the owner is satisfied, and who contracts for the purchase at an acceptable price.

2. Same — Not necessary that purchase money be paid to entitle broker to commissions — The acceptance of the obligations of BUYER SUFFICIENT.

It is not necessary in order to be entitled to commissions that the purchase'money shall all or any part of it, be actually paid. But if the seller accepts the obligations of the buyer in payment of the price, then the commissions are earned, although the buyer may fail to pay his obligations. The words “acceptable price” mean price or rate of payment satisfactory to the vendor, and do not mean money actually paid in consummation of the sale.

The plaintiff brought this action to recover an agreed .commission of ten per cent, as a broker for selling a tract of 435,000 acres of land in Kentucky. Mr. S. R. Dickson, as agent of the defendant, employed the plaintiff to sell the property for the defendant. In pursuance of his employment, the plaintiff, after soliciting and conferring with many persons, finally introduced to Mr. Dickson, Jere Baxter and W. A. Milliken, and shortly thereafter the defendant signed the following contract with the plaintiff:

“ New York, May 10, 1887.

“ To Jonathan D. Condict, Esq., No. 145 Broadway, New York.

“ Sir—I hereby agree to pay you a commission of ten per cent, on the price I may accept for the 435,000 acres of land in Eastern Kentucky, belonging to me, if sold through your agency. I hereby acknowledge your agency in bringing Jerry Baxter and his associates to me, whereby a refusal until September 10 th was given by me.

“JANE H. COWDREY.’'

“The refusal until September 10th,’’ above referred to, was in writing signed by her and Jere Baxter, dated May 10, 1887, whereby the defendant agreed to sell the lands in question at ten cents per acre; one-third to be paid in cash,, and the balance in two equal installments of twelve and twenty-four months, with the proviso “ that the said Jere' Baxter shall have the period of four months, or until Sep

p. 601

tember 10, 1887, to accept this said offer of sale and comply with the terms thereof upon condition and in consideration that he the said Baxter, shall, at his own expense, time and labor have the titles to said property examined into, and the conditions and character of the land examined, and gather all information he may deem necessary for him to act intelligently in the premises, the vendors not being able to give him such information,” with the further provision, that if the said Baxter “'shall not have been able to complete same at the expiration of this contract, then it shall be renewed and extended upon same terms and conditions for a further period of ninety days.”

It appears that these extensions of time were continued until finally, on April 26, 1888, the defendant received from Fred. Wolffe and W. A. Milliken, who were the associates of said Baxter in the transaction, $2,000 in cash, and the following receipt was given:

“New York, April 26, 1888.

“Received of Fred. Wolffe and W. A. Milliken $2,000 (two thousand dollars) and three acceptances- for $13,833.-33^ each, drawn by W. A. Milliken on Fred. Wolffe to the order of Mrs. Jane H. Cowdrey and accepted by said Wolffe, and due respectively at ninety days, four months, and six months from date, which cash and acceptances are in payment of several tracts of lands lying in eastern Kentucky, containing 435,000 acres, and for which the said Mrs. Cowdrey has this day executed eight several deeds, and said deeds, with said acceptances, are deposited as an escrow with the Second National Bank of New York, and upon the payment of said acceptances, said deeds are to be delivered by said bank, to said Wolffe and Milliken.

“JANE H. COWDREY, Executor, ■ and J. H. Cowdrey by S. R. Digkson, her Attorney.”

The conditions of hypothecation under which the said papers were placed in escrow were: 1 ‘ If the above obligations are paid at maturity, ” * * . * “then the inclosed deeds are to be delivered to said Milliken or Wolffe, but in case of any defalcation in the payment, the deeds and papers are to be delivered to Mrs. J. H. Cowdrey, and all moneys paid shall be forfeited in liquidation of damages sustained by virtue of the non-payment of any of said obligations.”

Frederick Wolffe (one of" the said parties), a witness called by the plaintiff, testified : “I claim that these papers, the deeds and the notes, were left with the Second N ational Bank, under the conditions stated in these papers, tor the purpose of allowing Mr. Milliken and myself time to in yes

p. 602

tigate the title to this property. The acceptances and the deeds were left with the Second National Bank for safe keeping until Judge Milliken had examined the titles of the lands, and before the first acceptance became due he had to report on these lands and the title to them, and if the lands were not good, of course I would not pay for them.” * * *

“We have sued Mrs. Cowdrey, * * * and the suit is now pending in the United States court for damages and to set aside the contract.”

Mr. Samuel R. Dickson, a witness on the part of the defendant, testified in regard to the contract between plaintiff and defendant, dated May 10, 1887, “that that written contract did not contain all the agreement with Oondict; * * * Condict was to have ten per cent of whatever we realized by the sale of these lands; * * * he was to receive ten per cent commission upon whatever we received for the lands. ”

The trial court directed a verdict for the plaintiff for the full amount claimed.

The Court (Mr. Justice Freedman): “I shall hold that the written contract merged all prior oral agreements; that it is the final embodiment and repository of the intention of the parties. That must control in this case; the oral evidence cannot change-it: there is nothing to go to the jury that I can see.”

A. G. Atwater, for resp’t; A. C. Butts, for app’lt.

This action is brought by the plaintiff, a real estate broker, to recover from the defendant, the amount of certain commissions which he claims to have earned in her employment.

The defendant admits the employment, but denies that his services had produced a sale of the property, and that such a result was necessary to entitle him to receive any commissions.

The law, as to the rights and duties of brokers, has been the subject of numerous decisions of the courts of this state, and may be regarded as, in great part, settled by the current of authority.

The duty the broker undertakes, the obligation he assumes, as a condition of his right to demand commissions, is to bring the buyer and seller to an agreement.

In that, all the authorities substantially concur

The true definition of a broker seems to be, that he is an agent employed to make bargains and contracts between other persons, for a compensation

The duty of a broker consists m bringing the minds of the vendor and vendee to an agreement.

p. 603

He must produce a. purchaser, ready and willing to enter. into a contract, on the employer’s terms.

This implies the agreement of the buyer and the seller the meeting of their minds produced by the agency of the broker.

The commissions are earned when the broker produces to his principal, a party with whom the owner is satisfied, and who contracts for the purchase at an acceptable price. Sibbald v. The Bethlehem Iron Co., 83 N. Y., 381 , 382.

The contention of the defendant, in the case at bar, is that, by special contract with the plaintiff, she became liable for payment of commissions, only when the contract of sale of her property was fully carried out, and the purchase money actually received by her.

This proposition is not sustained by any evidence produced on her behalf.

Her letter to the plaintiff of May 10th, 1887, properly interpreted and understood, does not bear such a construction.

The words in that letter, “the price I may accept” for the land, are similar to those used in one of the opinions above cited.

There the words “acceptable price” clearly mean price, or rate of payment, satisfactory to the vendor, and do not mean money actually paid in consummation of the sale. •

The words in the letter “if sold through your agency,” must be understood as meaning if a valid agreement for the sale of the property has been entered into between the defendant and a person or persons ready and willing to purchase, and with whom the defendant was satisfied.

The oral testimony on the part of the defendant, for the purpose of proving a collateral verbal agreement, in accordance with the alleged real intent of the defendant, differing from that which the language of her letter expressed, was quite insufficient.

A valid agreement was in fact entered into by persons ready and willing to purchase the property, and defendant received from them in part payment, cash, and the deposit of certain securities, to be forfeited to her in case of their failure to carry out their agreement, and these persons were ■ introduced to the defendant by the plaintiff, and his action was the procuring cause of that contract.

The fact that they subsequently refused to carry out that contract, on the ground of alleged false representations made by the defendant here through her agent Dickson, and that a litigation on the subject is now pending between them and the defendant, in no degree affects the rights of the plaintiff.

His duty was performed, and his compensation was

p. 604

earned, when the minds of his employer, and of the persons then ready and willing to purchase, had met, and a binding agreement had been made between them. Duclos v. Cunningham, 102 N. Y., 678 ; 2 N. Y. State Rep., 13; Knapp v. Wallace, 41 N. Y., 479 .

No error was committed by the trial judge, and the judgment in favor of the plaintiff must be affirmed, with costs.

Sedgwick, Ch. J., concurs.