Bonwell v. Auld — 57 N.Y. St. Rep. 572

Majority

p. 572

Charles E. Bonwell, Resp’t, v. Thomas Auld, App’lt.

(New York City Court, General Term,

Filed March 9, 1894.)

Headnote

1. BBOKEBS—COMMISSIONS.

On exchange of property, neither party can refuse compensation, if it is promised when fully informed that the broker holds the same relation to the adverse dealer.

2. Same.

Proof of his employment, amount agreed upon for his commission and that his efforts and negotiations induced and secured the exchange entitle broker to recover.

3. Appeal—Motion to Dismiss.

If the defendant does not, at the close of the case, request a dismissal or verdict in his favor, his objection that the verdict is excessive cannot avail, where the judge charges, without objection, that, if the jury find for the plaintiff, it must be for a sum certain, which is the verdict returned.

Appeal by defendant from judgment against him entered on erdict of a jury.

Theo. H. Friend, for app’lt; T. J. L. McManus, for resp’t.

The only exceptions in the case are to the denial of appellant’s motion to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action made at the opening of the case, and at the close of plaintiff’s evidence, and to the denial of the motion for a nonsuit made after plaintiff rested. None, of these motions were renewed at the close of the case, nor did defendant request the direction of a verdict in his favor. The complaint alleges that plaintiff procured and induced Bradley & Co. to exchange their certain real property in New York for defendant’s certain similar property in Newark, N.

p. 573

plaintiff reduced his commission to $350, which defendant agreed to pay, and that he did pay $5 on account thereof.

This complaint sets forth a cause of action even though it did not allege a previous employment of plaintiff by defendant, and as the exchange was finally made with knowledge by defendant of plaintiff’s claim for and efforts in negotiating the same, it would be a conscious appropriation of plaintiff’s services, and the allegation is that he promised to pay a fixed sum for the same, and moreover, the complaint does allege a previous employment by defendant of plaintiff to procure a purchaser for this particular property, and that its exchange was procured and induced by plaintiff in pursuance of such employment. The plaintiff’s proof is complete and abundant as to his employment, amount agreed upon for his commission, that his efforts and negotiations induced and secured the exchange, that defendant agreed to pay him a fixed sum for his commission when fully informed that he was also acting as broker for Bradley & Co. as to their property, which was deeded to defendant in exchange for his. While it may be difficult for a broker to serve with equal efficiency two masters, neither.of them can complain nor refuse compensation if it was promised when fully informed that his agent held the same relation to the adverse dealer. Jarvis v. Schaefer, 105 N. Y. 293 ; 7 St. Rep. 502 .

As already shown, defendant did not at the close of the case request a dismissal or verdict in his favor, but acquiesced, without objection, in the submission of the case to the jury; hence his complaint, now, that the verdict is excessive, cannot avail, as the judge charged without objection, that if the jury found for plaintiff “ that the verdict must be for $345,” and such was the verdict returned. Moreover, there really was no dispute as to the amount, for plaintiff’s contention by proof was, that defendant agreed to pay him $350 and has paid him $5 on account thereof, while defendant claimed that he was not liable at all.

The judgment and order affirmed with costs.

ISTewburger, J., concurs.