Colwell v. Tompkins

Willard Bartlett, J.: This action was brought to recover commissions which were claimed by the plaintiff, as a real estate broker, for effecting the sale to one Frank W. Molloy of certain property at New Rochelle, N. Y., belonging to the defendant, for the sum of $20,000. The learned judge who presided at the trial dismissed the complaint on the ground that the plaintiff’s efforts did not constitute the moving cause which secured the purchaser. I am satisfied that he was clearly right in this view. To demonstrate its correctness we need not go beyond the testimony of the first witness called in behalf of the plaintiff, who was Mr. J. Addison Young, one of the attorneys interested in the foreclosure of a mortgage upon the premises, which were the subject of the sale. This gentleman testifies that when [94] Mr. Molloy came to see him, at the very outset of the negotiations, he said in substance that he would give $20,000 for the property, if he could not get it for $18,000. The plaintiff did not call Mr. Molloy’s attention to the property, and up to that time he had never had any communication whatever with Mr. Molloy in reference to the matter, either directly or indirectly. It is apparent, therefore, that nothing subsequently done by the plaintiff could have induced Mr. Molloy to buy, as he did huy, at $20,000, for, before seeing or hearing from the plaintiff at all, Mr. Molloy had evidently made up his mind to purchase at that figure, if he could not do better. The plaintiff can claim to recover in this action only upon the theory that he has rendered service to the defendant. To earn a commission upon the sale of real estate the broker must prove .that he was an efficient agent in bringing about the sale. (McClave v. Paine, 49 N. Y. 561; Lloyd v. Matthews, 51 id. 124.) But in the case at bar, without any action whatever on the part of the plaintiff, of which Mr. Molloy had any knowledge, the latter was willing to pay the price for which the defendant was willing to sell. Nothing done by the plaintiff could have had any effect to change the purchaser’s attitude for the benefit of the owner, because that attitude was as favorable at the beginning of the negotiations for the purchase as. it was when the purchase was agreed upon.' It is argued, however, that the plaintiff may be regarded as the procuring cause of the sale, because,- having the property on his books for sale at the instance .of the owner, he had told’ Mr. Young that Miss Marsh, the authorized agent of the owner, had -the property in charge, and Mr. Young communicated this information to Mr.- Molloy, who subsequently bought the premises directly from Miss Marsh herself. In other words, the contention is that a broker employed to sell real estate earns his commission if he simply tells a friend or ■ acquaintance who the owner is, and that friend or ■acquaintance in turn gives the owner’s name to an intending pu-rchasér who thereupon goes directly to the owner and buys without ever seeing or communicating with the broker. There may he language in some of the decided cases broad enough to afford an apparent support to -this proposition, but I have found no instance in which a recovery has been sustained where the broker had done so little to bring about a sale as was done by Mr. Colwell. [95] It should also be observed that Mr. Young was by no means certain that Mr. Oolwellwas the source of the information which he had and which he communicated to Mr. Molloy concerning Miss Marsh and her relation to the property; On cross-examination Mr. Young admitted that a Mr. Underhill, about the time of Mr. Molloy’s first call, had informed him that Miss Marsh had a power of attorney from the owner, and he would not swear that this was not before he saw Mr. Molloy at all in reference to the matter. When the witness for the plaintiff whose testimony is essential to supply the connecting link to take the case to the jury is no more positive than this, I think the complaint should be dismissed, unless' vague possibility is to fulfill the office of proof. In my opinion, the judgment and order appealed from should be affirmed. All concurred, except Hatch, J., dissenting, and Cuelen, J., not - sitting.