Brown v. Helmuth — 50 N.Y. St. Rep. 524

Majority

p. 524

Joseph Romaine Brown et al., Resp'ts, v. Fannie Ida Helmuth, App'lt.

(New York Superior Court,

General Term,

Filed, January 3, 1893.)

Headnote

Brokers—Commissions.

When the contract of sale is signed, the broker’s commission is earned, and it is due to him. although the contract is not carried out, unless some culpable acts of the broker can be shown to defeat his claim.

Appeal from judgment of trial term, entered on verdict of jury, and from order denying motion for new trial.

James J. Thomson, for resp’ts ;

L. Laflin Kellogg, for app’lt.

Plaintiffs obtained a purchaser for the defendant’s house. The purchase price was agreed upon between the purchaser and defendant; and, at defendant’s request, the plaintiffs prepared the contract of sale, which was duly executed by the purchaser and defendant; whereupon the defendant was paid and received $2,000, on account of the purchase money. These facts are established by competent and sufficient evidence, and they clearly entitle the plaintiffs to their legal commission, to wit, one per cent, of the purchase price. When the contract was signed, the plaintiffs’ commission was earned, and it was due to the plaintiffs from the defendant, unless some culpable acts of plaintiffs can be shown to defeat their claim. There is no evidence that warrants the imputation to plaintiffs of fraud or deceit in bringing about the execution of the contract. The plaintiffs’ claim is not barred upon that ground.

The defendant, however, does assert that the failure to complete the sale of the premises was due to the negligent and careless manner in which the contract was drawn by the plaintiffs. The acts of negligence charged consist of the omission from the contract of the restrictions contained in the deed to the premises. These omissions, the defendant alleges in her answer, were the reasons given by the purchaser for rejecting the title and refusing to complete the purchase.

The alleged acts of negligence are made the basis of a counterclaim. One of the errors assigned by the learned counsel for the defendant is that the trial judge improperly dismissed the counterclaim. This contention is not tenable, for the reason that there is no evidence whatever to support the counterclaim. Had it been submitted to the jury, and had the jury upon the evidence as it stands on the record found in favor of the defendant on the counterclaim, it would have been the duty of the court to set aside the verdict for the want of evidence to support it.^

We find no exceptions to the admission or exclusion of evidence that calls for a reversal, and we think the charge of the learned trial judge, when taken as a whole, left such issues as there were in the case properly to the jury.

The judgment and order appealed from must be affirmed, with costs.

Freedman and McAdam, JJ., concur.