Pearsall v. Hirsh — 39 N.Y. St. Rep. 258

Majority

p. 258

Phebe Pearsall, App’lt, v. Jacob Hirsh et al., Resp’ts.

(New York Superior Court, General Term,

Filed May 4, 1891.)

Headnote

Aoent—Real estate—Fiduciary relations.

Plaintiff employed defendant H., by a contract under seal, as her agent, to effect a purchase of certain real estate belonging to defendant F. at a price not to exceed $51,000, and to take a contract of sale in his own name and

p. 259

assign it to her. Held, that I-I., having made all reasonable efforts to purchase the property at the given price and failed, could purchase the property for himself for $53,500, as he had fulfilled the obligation of the contract on his part.

Appeal by plaintiff from an order sustaining demurrer to complaint, and from interlocutory judgment entered thereon.

Henry L. Burnett and Edward B. Whitney, for app’lt; Max Stern (Elliot Minor, of counsel), for resp’ts.

—The complaint averred that the defendant Ferguson was and is the owner of a certain described lot; that on, etc., by agreement in writing, bearing date on that day, plaintiff employed the defendant Hirsh as her agent for the purchase of said premises from the defendant Ferguson at a price not to exceed $51,000, and agreed to pay Hirsh for his services in securing a contract of sale from said Ferguson (the same to be taken in his own ñame, to be assigned by him to plaintiff) the sum of $500, etc., and by which said contract, said Hirsh agreed to make all reasonable efforts to purchase said lot of said Ferguson for plaintiff, as above stated.

That thereafter Ferguson entered into a contract under seal to sell the said lot to defendant Grutwillig for $52,500.

That defendant Ghitwillig is personally related to defendant Hirsh, and defendant Hirsh is the real party in interest.

The complaint, after proffering what was equitable on the part of plaintiff, demanded judgment that plaintiff is entitled to an assignment of the contract of sale; that such assignment be made and enjoining the defendants and each of them from conveying the contract or the property.

Possibly it might be enough to determine the demurrer that complaint did not state a cause to consider the conclusive legal effect of the contract of sale to defendant Grutwillig, under such decisions as that of Briggs v. Partridge, 64 N. Y., 357 . By those decisions, as matter of law, the only parties having a legal interest in a sealed contract are those that sign it. But as the proposition was not discussed on the argument, it will not be made the ground of the decision here.

The defendant Hirsh having become the agent of the plaintiff, would, if there was no limitation by the rest of the contract, have been held to the performance of the obligations of an agent. And it will be assumed that while an agent he could not deal in respect of the property to his own advantage without becoming liable to his principal, the plaintiff. The maxim Legem, enim contractus dat. By the contract, and not because such would have been his duty as agent to purchase for plaintiff, he was to obtain a contract in his own name for the purchase price of $51,000, and assign it to the plaintiff, and to that end to make all reasonable efforts to purchase said lot

By the contract, if Hirsh was unable, by all reasonable efforts, to purchase, to procure a contract at a price of $51,000, he fulfilled the obligation of the contract on his part, and could not be compelled under the contract to assign an agreement for sale for

p. 260

.$>52,000, the terms being that plaintifE would become assignee of; it if it were for $51,000.

If, indeed, Hirsh, through Gutwillig, bought at $52,000, not having made all reasonable efforts to purchase at $51,000, that, 1 perhaps, might justify an action for damages from Hirsh’s breach of the contract. The complaint does not set forth such a cause ; of action.

The allegations of the complaint would not uphold the judgment that is demanded by it. ' 1

Judgment and order affirmed, with costs.

Sedgwick, Oh. J., Freedman and Mcádam. JJ., concur :