Bach v. Emerich — 35 N.Y. Super. Ct. 548

Majority

p. 548

ELIAS BACH, Plaintiff and Respondent, v. FRANZ EMERICH, Defendant and Appellant.

Headnote

I. Broker in Real Estate.

1. Sight to commissions, Try what not affected.

1. Having on the employment of the vendor obtained a purchaser on the vendor’s terms, his right to commissions will not be aSected by—

1. Non-performance of the contract.

OR,

2. That on the purchaser’s failure to perform, the broker procured another purchaser, and stated that he expected no commission on the other sale.

3. That the vendor did not understand the contract as written, provided the broker himself was not guilty of fraud or deception.

2. By what it will he affected.

1. By complicity between the broker and the person claimed to be procured by him, as a purchaser, such person being a mere pretended purchaser, who, by arrangement with the broker, had no intention of fulfilling the contract. In such case the broker cannot recover.

1. Proof of complicity, a. "What not sufficient.

See statement of case and opinion.

Before Barbour, Ch. J., Monell and Van Vorst, JJ.

Decided May 3, 1873.

Appeal from judgment.

The action was to recover compensation or commission for procuring a purchaser for certain real estate of the defendant.

The complaint alleged that the plaintiff had performed service in procuring the sale of certain real estate at the instance and request of the defendant, for which service the defendant had promised to pay the plaintiff.

The answer was a general denial.

The plaintiff proved that he procured a purchaser for the property, at a price and on terms agreed to Tby the

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defendant, and that a written contract was entered into "between the purchaser and the defendant.

The contract "between the defendant and the purchaser was introduced, and the defendant, upon his examination as a witness, was asked,

Did you know what was in it %

The question was objected to by the plaintiff’s counsel.

The defendant’s counsel stated that he proposed to connect the broker with the evidence. The court excluded the evidence, and the counsel for the defendant excepted.

The defendant further testified that the contract was brought to him already signed by the purchaser, and was read to him by the plaintiff, and then he, the defendant, signed it. He received a promissory note for $200 for the cash payment mentioned in the contract, and was asked whether the purchaser was present at the time the contract was brought to him. The question was objected to by the plaintiff.

The court required the defendant’s counsel to state the facts which he intended to prove, which occurred subsequently to the delivery of this note to Emerich, and which were relied upon to show fraud on the part of the broker.

The counsel for the defendant then stated that he proposed to prove, in connection with the facts already proved, that the plaintiff brought this contract already executed by Oberle (the purchaser), whom the defendant had never seen; that the plaintiff was present when the contract was signed by defendant; that it was tendered to defendant either by plaintiff or Miller, the subscribing witness to the contract; that in pursuance of that contract a note purporting to be the note of Oberle for.$200, payable in ten days, and which had no internal-revenue stamp on it, was given; that in the presence of the broker who subsequently came with

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Oberle on the day when the contract was by its terms to be performed, this note was tendered back and was accepted by Oberle, and that subsequently plaintiff came to defendant and proposed another contract with some other person and Oberle, for a different purchase of this property, and in the presence of Oberle and the other purchaser distinctly stated to defendant that he expected no commission on the other sale, or what he now claims to be a sale.

We offer this for the purpose of proving complicity between the broker and the pretended purchaser.

The court excluded the question and the evidence offered by the defendant, and the counsel for the defendant duly excepted.

The Cotibt—The defendant may show any acts on the part of the broker anterior to the execution of the contract, by which it may be made to appear that the contract, as made was not a bona-fide contract between Mr. Emerich and the purchaser named therein. Do you desire to give any evidence of acts by the broker anterior to the making of the contract?

The Defendant’s Counsel—No, sir; I have proposed to prove all the facts which go to constitute the chain of evidence which wé claim ought to be presented to the jury to show the connection of the broker with the fraud, and then of what the fraud consisted—that these parties never owned or controlled any such property as they proposed to convey to the defendant, and that if it had succeeded, it was the design to defraud the defendant out of his lots.

The Coubt—You give that as your theory, not as an offer of proof.

The court then asked the defendant’s counsel whether he had any other evidence of facts or circumstances which he could specifically name in support of his theory.

The counsel for the defendant stated, none but what he had already detailed.

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The court thereupon excluded the evidence offered, and defendant’s counsel excepted.

Plaintiff’s counsel requested the court to direct a verdict in the plaintiff’s favor.

Defendant’s counsel asked leave to go to the jury upon the testimony in this case.

The court refused to permit the counsel for the defendant to address the jury, and directed the jury to find a verdict for the plaintiff for $241.95, to which refusal and direction the counsel for the defendant excepted.

The defendant appealed.

Mr. Woodward, for appellant.

Messrs. Lawrence & Wachner, for respondent.

The evidence on the part of the plaintiff was sufficient to show, prima facie, that he procured a purchaser for the defendant’s property. It was not disputed that the plaintiff was employed by the defendant, or that the latter promised and agreed to pay the commissions. The parties were brought together, the price and terms agreed upon, and the contract signed. All was done, therefore, that was required to entitle the plaintiff to payment (Jewett v. Emson, 2 Robt. 165; Stillman n. Mitchell, Id. 523; Barnard v. Monnot, 3 Keyes, 203). The circumstance that the contract was not performed, did not affect the plaintiff’s right to compensation (Smith v. Smith, 1 Sweeny, 552 ).

There was no conflict in the evidence establishing these facts. The defendant upon his examination did not deny the employment or the agreement to pay commissions. There was a faint attempt to show that he did not fully understand the written contract. He says he read it in part, or attempted to read it, and then

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the plaintiff read it to him. He did not say that the plaintiff did not read it correctly, but he said that afterwards he found there was something wrong. In. what the “ wrong” consisted, he did not say.

The offered evidence having been excluded, there was no question for the jury ; and the direction to find for the plaintiff was correct.

But it was urged by the defendant that the evidence offered was competent, and stiould have been,admitted.

I do not understand that the offer embraced the evidence of any fact anterior to the making of the' contract, which could have in any way affected the plaintiff s action. To that time, and including the signing of the contract, the evidence offered was substantially the same as had already been introduced. But it was attempted to prove that svbseguently to making of the contract, and on the day mentioned for its performance, the plaintiff brought another purchaser, and then stated that he expected no commissions on the other sale.

The evidence was offered to prove complicity between the plaintiff and the purchaser.

I do not think the evidence offered would have constituted a defence to the action.

As has already been observed, the plaintiff, prima facie, was entitled to compensation for procuring the purchaser; and his right was not to be affected by a failure of the purchaser to perform the contract.

Therefore, whatever occurred afterwards, unless it could operate as a release or discharge of the cause of action, would not prevent a recovery.

That the plaintiff brought to the defendant another purchaser, and stated that he expected no commissions on the other sale, did not amount to a release.

But th,e evidence was not offered for such purpose, but, as averred, for the purpose of showing some complicity on the part of the plaintiff.

Ho doubt it was proper to show such complicity.

p. 553

But the offer fell short of establishing it. If it was intended to show that the person who made the contract with the defendant was a mere pretended purchaser, and was brought into the transaction so that the plaintiff might claim that he had procured a purchaser, but without any intention that he should perform the contract, then proof in support of such a design would be competent and sufficient to defeat a recovery. But the evidence given, as well as the evidence offered, did not even tend to establish any such defence, and was, therefore, properly excluded. It went, if anything, to show that the first purchaser having failed to perform, the plaintiff had procured another. It did not show any fraud or trick on the part of the plaintiff. For the failure of the purchaser to perform, the plaintiff does not appear to have been in any way responsible, and it furnishes no reason for defeating a recovery.

The question concerning the plaintiff’s knowledge of the contents of the contract was properly excluded. Independently of the defendant’s testimony, that the contract was read to him, and that he had “looked it over” before signing, the evidence was immaterial. The plaintiff had procured the purchaser, which of itself entitled him to' the commissions. Even if the defendant did not understand the contract as written, the plaintiff could, nevertheless, demand his compensation, unless he had himself practised some fraud or deception, of which there was no proof, upon the defendant.

The judgment should be affirmed.