Mahoney v. Ungrich — 39 N.Y. St. Rep. 139

Majority

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Daniel Mahoney, Resp’t, v. Louis Ungrich et al., App’lts.

(New York Superior Court, General Term,

Filed May 4, 1891.)

Headnote

1. Agent—Commission for sale of real estate.

In an action to recover for services rendered to defendant in procuring a purchaser for real estate, under a special agreement to pay one per cent commission, testimony of the purchaser and the admission of the defendant in the presence of a witness, that the purchaser’s attention was first called to the property by the plaintiff, and that he was the inducing cause of the sale, establishes a clear cause of action against the defendant.

2. Agency—Authorization.

Evidence that property was placed in the hands of several brokers for sale by a co-owner, with the knowledge of the other owner, that the property was sold, and the latter united in the deed, is sufficient to authorize a finding that the former was authorized to employ brokers in effecting the sale, and that they are jointly liable for the brokers’ commissions.

The plaintiff sued to recover $675 for services rendered to the defendants in procuring a purchaser for their property on the northwest corner of Rinth avenue and Seventeenth street, at $67,500. The plaintiff is not a broker, and relied upon a special agreement to pay him one per cent commission.

The defendants conceded that they sold the property to one Eobert Blackburn for $67,500, and defended upon the ground tha$ they never employed the plaintiff, never promised to pay him

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a commission, and on further ground that he was not the procuring cause of the sale. Upon the conclusion of the evidence on the part of the plaintiff, the defendants’ counsel moved to dismiss the complaint on the general ground that no cause of action had been proved, and that it affirmatively appeared that the plaintiff was not the procuring cause of the sale, and upon the further ground that no cause of action had been established against Louis and Louisa Ungrich, two of the three defendants.

The complaint was dismissed as to Louisa Ungrich, and the motion to dismiss as to Louis and Louis Kossuth Ungrich was denied. The trial proceeded against these two defendants and resulted in a verdict in favor of the plaintiff for $722.24, the amount claimed, and interest. A motion for a new trial on the minutes was made and denied, and the two defendants named appealed from the judgment and order.

E. P. Orrell, for app’lt Louis Ungrich; Johnston & Johnston, for app’lt Louis K. Ungrich; Jeroloman & Arrowswith, for resp’t.

—The plaintiff proved that he had a conversation with Louis K. Ungrich, one of the defendants, at which he was employed on their behalf to find a purchaser for the property in question, under an agreement that he was to be compensated for his services at the rate of one per cent upon the, selling price. That acting under this employment he called the attention of Blackburn to the property and placed him in communication with the defendants, and that his efforts eventuated in the sale to Blackburn at $67,500.

Blackburn, the purchaser, was next called as a witness and testified that bis attention was first called to the property by the plaintiff, and in effect that he was the procuring cause of the sale subsequently made. Indeed, Louis K. Ungrich admitted in the presence of the witness Quinn that the plaintiff was the inducing cause of the sale, and the proof on this subject is emphatic.

The plaintiff having proved: 1st, his employment to sell; 2d, a special agreement to pay him for his services at the rate of one per cent on the selling price; 3d, a sale through his efforts to Blackburn at $67,500, established a clear cause of action against Louis K. Ungrich, and the only remaining question is whether the obligation is to be enforced against him alone or jointly with his brother and co-owner, Louis Ungrich.

The evidence shows that Louis K. Ungrich had authority to sell the property, he did sell it, and executed the contract of sale on his own behalf and as agent of his brother Louis.

Louis ratified the sale by joining in the execution of the deed required by the contract. The property was placed in the hands of several brokers by Louis K. Ungrich, to the knowledge of his brother and inferentially by his approval. The circumstances stated were sufficient to authorize a finding that Louis K. Ungrich had authority from his brother to employ assistance in effecting a sale of the property and to make any contract for the payment of the customary brokerage charges. It is is impossible to lay down any inflexible rule by which it can be determined what

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evidence shall be sufficient to establish an agency in any given case, but it may be said in general terms that whatever evidence has the tendency to prove the agency is admissible, even though not full and satisfactory, as it is the province of the jury to pass upon and determine what weight it is entitled to receive. Bickford v. Menier, 36 Hun. 446 ; Heywood Co. v. Burns, 15 N. Y. State Rep., 570 ; Leslie v. Knickerbocker L. Ins. Co., 63 N. Y., 27 . The case was carefully submitted to the jury, and they found the facts in favor of the plaintiff. The evidence satisfactorily sustains their verdict, and the judgment entered upon it and the order denying the motion for a new trial must be affirmed, with costs.

Sedgwick, Oh. J., concurs.