Duryea v. Vosburgh — 52 N.Y. St. Rep. 154

Majority

p. 154

Louis T. Duryea et al., App'lts, v. William C. Vosburgh, Resp't.^[1]

(Court of Appeals,

Filed April 25, 1893.)

Headnote

Brokers—Action fob moneys retained by.

Defendant was employed as agent for plaintiffs for the purpose of ascertaining the lowest price at which one Peck would sell his interest in the business of V. & Co., in which firm defendant was a partner. He ascertained the lowest price that Peck would take was $45,750, and reported the amount of $51,750 to plaintiffs, retaining the $6,000 himself; which he claimed Peck had agreed to allow him for his consent to plaintiff’s coming into the firm. In an action for the amount retained by him the court, upon request, charged the jury that before they could find a verdict against defendant, they must find that $51,750 was not Peck’s lowest price in view of the sum he was to pay Yosburgh. Held, error; that, as plaintiffs’ agent, he was bound, in good faith, to report to plaintiffs that the lowest price was a certain sum, but to that was to be added another sum as a consideration to defendant to obtain his consent to taking in the new partner.

Appeal from judgment of the supreme court, general term, second department, affirming judgment for defendant entered on verdict.

Defendant was employed, or undertook, to obtain the lowest price for which the interest of Edwin S. Peck in the partnership of R. C. Yosburgh & Co. could be bought by the plaintiffs. Defendant bought the interest for $6,000 less than the sum which plaintiffs paid for the interest and kept the $6,000 himself, reporting to plaintiffs the larger sum. Defendant claimed that the $6,000, by agreement between himself and Peck, was to be paid for his services, also for his consent that plaintiffs should be admitted as partners in the firm.

E. Countryman, for app’lts; Matthew Hale, for resp’t.

The court, upon request, charged the jury that before they could find a verdict against defendant, they must find that $51,750 was not Peck’s lowest price in view of the sum that he was to pay Yosburgh. We think this was error; Taking the evidence on the part of the plaintiffs as true, which we must, when looking at the case with reference to this charge, we have the defendant occupying the position of their agent for the purpose of ascertaining the lowest price at which Peck would sell his

p. 155

interest in the business. As such agent, he was bound in good faith to perform that duty, and to ascertain and report to the plaintiffs what the lowest price was. Bid he perform such duty, by ascertaining the lowest price that Peck would take for his interest, and then silently adding to that sum the amount of $6,000, which was to be paid by Peck to defendant as the price of his consent to the transfer of the partnership interest by Peck, and reporting to the plaintiffs this total sum for Peck’s interest and for defendant’s consent as the lowest price" for Peck’s interest alone ? We think not.

If defendant were such agent, it would have been his duty to inform the plaintiffs that the lowest price for Peck’s interest was a ■certain sum, but to that was to be added another sum as a consideration to defendant to obtain his consent to taking in as a partner the person who was to' purchase the interest of Peck.

It is true that in the main charge the court instructed the jury that if, under the circumstances, the defendant acted as the agent of the plaintiffs to get the lowest price from Peck, he was liable. But the request made by defendant’s counsel subsequent to the main charge might well be understood as qualifying that statement in the manner and to the extent mentioned in the request. After this charge, as made upon the request, there was not much left of the plaintiffs’ case.

This error was material and radical. The judgment must, therefore, be reversed, and a new trial granted, with costs to abide the event.

All concur.