Levy v. Ruff — 53 N.Y. St. Rep. 174

Majority

p. 174

Simon Levy, Resp’t, v. Caroline Ruff, App’lt.^[1]

(New York Common Pleas, General Term.

Filed June 5, 1893.)

Headnote

1. Brokers—Commissions.

Plaintiff was employed by defendant to sell her property, and procured a purchaser, with whom she agreed upon the price and entered into an informal contract, which called for a formal contract to be executed. Such contract was not entered into, as defendant- insisted on having all cash for her equity, instead of a mortgage for part, as formerly agreed upon. Held, that plaintiff had performed his duty in bringing the parties together, and was entitled to his commissions.

2. Same—Financial condition of purchaser.

It is immaterial whether the purchaser, at the time of signing the contract, was "able to pay the entire purchase price or as to what banks he had his money in, s) long as he was able to make the payment due at that time, and testifies that he could have raised the balance by the time it was required.

Appeal from a judgment of the city court on affirmance of a judgment entered in favor of plaintiff on a verdict of a jury at trial term.

Fromme Brothers, for app’lt; David Leventritt, for resp’t.

This action was brought by plaintiff to recover commissions as real estate broker in procuring a purchaser of certain property in Allen street for the defendant.

There is little conflict of testimony as to the facts. The employment of plaintiff by defendant is uncontradicted. It is also undisputed that while the original price named by the defendant for her premises was $28,000, and the original offer of Mr. Fine, the proposed purchaser, conceded to have been found by the plaintiff, was only $26,000, after some bargaining and negotiation Mr. Fine raised his offer to $27,000 and that this offer was accepted by the defendant, as she admits, and fifty dollars was immediately paid by Mr. Fine to defendant as a deposit, and that thereupon defendant executed a contract, drawn up by her daughter and witnessed by both the daughter and the broker, which although very inartificiallv drawn, we think, indicates with sufficient clearness the terms"of the sale. Pursuant to the terms of such informal agreement the parties met at the office of 0. Dexheimer, defendant’s lawyer, on December 28, 1891, and it is uncontradicted that on this occasion Mr. Fine was ready and willing to enter into a contract embodying the terms agreed upon in this

p. 175

informal contract, but that defendant, in pursuance of Mr. Dexheimer’s advice, refused to sign any contract for the sale of her property in accordance with that agreement. Mr. Dexheimer advised the defendant not to sign any contract unless she was paid her full equity in the property, notwithstanding the informal contract had provided for a second mortgage of $4,000 to be taken back by the seller. There were also some other differences at that time, but we think that the purchaser was in no fault, and was ready, willing and able to complete the contract according to the terms of the agreement between them and that plaintiff’s commissions were then and there earned."

When a broker employed to effect a sale has found a purchaser willing to take upon the terms named and of sufficient responsibility, he has performed his contract, and is entitled to the commissions agreed upon. Duclos v. Cunningham, 102 N. Y., 678 ; 2 St. Rep., 13 . It was not necessary that a written contract of sale should have been entered into between the parties in order to entitle the plaintiff to his commission. It was sufficient if the plaintiff had found a proposed purchaser ready and willing to enter into such a contract. And even where there has been an oral agreement on the terms of a real estate bargain with the intention of reducing it to writing, but before the contract was so reduced the owner has receded from the agreement, it has been repeatedly held that he was, nevertheless, liable for brokers’ commissions. Barnard v. Monnot, 3 Keyes, 203; Krahner v. Heil man, 30 St. Rep., 434 ; Kalley v. Baher, 132 N. Y., 1 ; 42 St. Rep., 762 ; Gilder v. Davis, 51 St. Rep., 179 ; S. C., 137 N. Y., 506 , advance sheets. In this case ■ there was not only an oral agreement, but that agreement had been reduced to writing, somewhat inartificially, it is true, yet with sufficient definiteness to witness the bringing of the minds of the parties together, and an agreement for the purchase and sale of the property and also its terms. The fact that the plaintiff subsequently met the defendant at Mr. Doll’s office, and endeavored to procure a new contract or another contract between the same parties or one substituted in the place of Mr. Fine, does not, in any way, affect the question at issue in this action. Therefore, the court did not err in its direction to the jury as to what took place at his office. Mor does the fact that the second endeavor fell through at all affect the plaintiff’s right to commissions. He had brought the minds of the parties to meet on the terms embraced in the informal agreement, and conceding that the parties subsequently agreed to modify those terms by requiring all cash; and defendant admits it was not until after the meeting at Mr. Dexheimer’s office that this was insisted upon ; and conceding that it then appeared that the purchaser was unable to fulfill these new conditions, it in no way affected the plaintiff’s rights. At the utmost all that could be required of the broker was that the purchaser should be ready and willing to enter into a contract on the terms of the informal contract, and it does not appear that at Mr. Doll’s office the purchasers were unwilling or unable to do that.

After Mr. Fine, the purchaser, had testified that at Mr. Dex

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heimer’s office he was ready and willing to carry out the contract, and had the $450 there to complete the $500 agreed upon as a deposit, he was cross-examined as to his ability to pay $15,000 in cash then and at that time, and finally, when the witness explained that his contract required only $11,000 to be paid in cash, but only $500 on that occasion, he was asked whether he had $10,500, which question was excluded. It was plainly immaterial whether he had or not. It was not required, on that occasion. The witness testified that he could have raised it and would have been able to pay it at the time when it was required, which was ninety days off. Of course the question as to what banks he had his money in was even less admissible, because it would have made no difference whether or not he had any money on deposit in any bank at that time ; he had the $450 which was required of him at that time, and the testimony is clear that he was of sufficient responsibility to have raised the amount necessary when the ninety days had expired.

The judgment should, therefore, be affirmed, with costs.

Bischoff and Pryor, JJ., concur.