Barnes v. Barker — 40 N.Y. Super. Ct. 102

Majority

p. 102

REON BARNES, Plaintiff and Appellant, v. STEPHEN BARKER, Defendant and Respondent.

Headnote

BROKER, COMPENSATION OF.

Where it appeared from the contract between the parties that plaintiff’s compensation as a broker depended upon an actual sale of a certain bond and mortgage, it may be well questioned whether the procurement of a purchaser who was able and willing to purchase the same, is a fulfillment of the contract by the broker.

But in the case at bar, where it appeared that although the plaintiff procured a purchaser who was able and willing to purchase the same, provided, the time of payment was shortened several years, and there was no evidence that the mortgagor consented to this change, and the fact was conceded that no sale took place, in such a case the plaintiff did not procure a purchaser under the contract, and was not entitled to recover any compensation.

Before Freedman and Speir, JJ.

Decided December 6, 1875.

Appeal from a judgment entered upon the decision of a single judge, (without a jury) dismissing the complaint.

Truax & Doscher, attorneys for appellant.

M. J. Thompson, attorney for respondent.

From the complaint .and the testimony of the plaintiff, it appears that under the contract, as made between the parties, plaintiff’s -compensation as a broker depended upon an actual

p. 103

sale of the bond and mortgage in question. Under such a contract it may well be questioned whether the mere procurement of a purchaser who is able and willing, is •enough. But the testimony further shows that though the plaintiff procured a purchaser who was ready and willing to take the said bond and mortgage in case the time of payment was shortened several years, he failed" •to procure one to take them as they were drawn and as they existed. Moreover, no legal proof was adduced that the mortgagor ever consented to the shortening of the time; and the fact remained conceded that no sale whatever took place in point of fact.

Under these circumstances the learned judge below was fully justified in finding that the plaintiff * did not procure a purchaser for said bond and mortgage.

The exception at fob 51, on the ground of immateriality, which is the only one noticed in appellant’s points, is not well taken. The evidence admitted under it had an important bearing on the probabilities of the case.

The judgment should be affirmed, with costs.

•Speir, J., concurred.