Gracie v. Stevens

Rumsey, J.: The action is brought to recover commissions earned by the plaintiff by procuring a purchaser for what was known as the lower-ferries belonging to the defendants and other persons. The defendants had inherited from their ancestor the right to operate and were conducting two ferries, one known as the Fourteenth Street or upper ferry, which extended from Fourteenth street, in Hoboken,, to Fourteenth street, in New York, and the other known as the-lower ferry, extending from Newark street, in Hoboken, to Christopher and Barclay streets, in New Fork. It is claimed by the plaintiff that the defendants employed him to procure a sale of these-properties, and that he did so. He was paid a certain sum as his. compensation for procuring a purchaser for the Fourteenth Street, ferry, and he brings this action to recover the value of the like-services as to the ■ lower ferry. The jury to whom the disputed questions of fact were submitted found for the plaintiff in a very considerable sum. A motion was made for a new trial, which was-denied, and from the judgment entered upon the verdict and from the order denying the motion for a new trial this appeal is taken. ’ — 205 — The plaintiff’s claim was that he was employed to obtain a purchaser, not only for the Fourteenth Street ferry, so called, but for the lower ferries as well. The defendants, on the contrary, while admitting that the plaintiff had been employed to find a purchaser for the Fourteenth Street ferry, insist that there was no employment as to the lower ferries, and that lie made no efforts in that behalf; and they say further that before the sale of the Fourteenth Street ferry had been completed the plaintiff entered into an agreement with Eldridge, the purchaser of that ferry, by which Eldridge, if he succeeded in purchasing that ferry, was to pay the plaintiff $10,000 for his services; that immediately upon ascertaining that fact they acceded to the contract made between Eldridge and the plaintiff for the payment of the $10,000, and guaranteed the payment of that sum by Eldridge to him, and thereupon discharged the plaintiff from all further employment on their behalf. The plaintiff insists that having been employed to sell not only the upper but the lower ferry, he had brought Eldridge to the defendants as an immediate purchaser of the upper ferry at the price fixed by the ■owners and as a prospective purchaser of the lower ferries within a very short time upon the terms he had been instructed to demand. The plaintiff claims in addition that he never had a contract with Eldridge for the payment of the $10,000 ; that Eldridge made a proposition to pay him that sum which he had never accepted, but that when the defendants ascertained that Eldridge had made that proposition they agreed to his accepting it as ■ his compensation for the sale of the upper ferry, and after that time so far from discharging him, they continued him in their employment with respect to the sale of the lower ferry and asked him to take no active part by way of conversations with Eldridge unless requested to do so by them. Each of these two contested issues of fact was submitted to the jury by the learned justice at the Trial Term. They have found a verdict for the plaintiff, and upon a careful consideration of the ■evidence we are convinced that the evidence was sufficient to warrant that finding. The serious questions arise upon the exceptions of the defendants to the charge of the court, and to the refusals to charge as requested by them. The court correctly instructed the jury as to the nature •of the employment of a broker such as the plaintiff claimed to be ; — 206 — as to what his duties were in the premises ; as to what was necessary to constitute such an employment; as to the extent of the services- and what he was compelled to do before he became entitled to-recover his compensation ; and submitted to the jury the question, whether-or not he had brought himself within the rules of law given, to them. As to all these matters we can perceive no errors in the charge.. The jury were told that if they found that the plaintiff was. employed to procure a purchaser 'of the ferry,' they were then to- • consider the question whether he conscientiously and faithfully did what he was employed to do. After giving them full directions as-to what it was necessary to prove by way of showing that he was the procuring cause of the transaction, the court called the attention of the jury to the question of good faith, saying that the plaintiff’s-right to a recovery depended upon his having acted faithfully and. conscientiously in behalf of the defendants in the course of liisemployment. In regard to that matter, he instructed the jury substantially that if they found that the plaintiff was employed to-procure a purchaser of the lower ferries, and that he had nothing-to do with the terms and conditions of the sale, but that these were to be determined by the defendants when they met the prospective-purchaser, that there would be nothing inconsistent with good faith on the part of the plaintiff in making an arrangement, with Eldridgefor commissions or in failing to notify the defendants of such arrangement. But he instructed them further that if they found there was an employment, and that pursuant to such employment-the- plaintiff was intrusted with the least discretion, or if the plaintiff’s skill and judgpient were relied upon by the defendants, then, his agreeing to act in a Similar capacity for Eldridge, where his duty and' interest might conflict, his acceptance of such an arrangement, with Eldridge and its concealment from the defendants would avoid the plaintiff’s right to recover any compensation. The correctness of this charge, and whether it fairly presented the rule of law which the jury should have considered upon that subject, is-the principal question 'presented to us upon this appeal. There can be. no doubt of the general rule that a broker who is employed to sell property, and whose duty it is not only to find a. purchaser but to negotiate the sale, cannot accept any compensation. — 207 — from any other person than his employer ; and if he does make an agreement to be paid by the purchaser, or if he assumes a position with reference to the transaction where his duty and interest might clash, he loses all right to his commissions from his employer. Among the numerous cases where that rule is laid down it is only necessary to cite Abel v. Disbrow (15 App. Div. 536) and Knauss v. Krueger Brewing Co. (142 N. Y. 70); but that rule, as is stated in the cases above cited, applies only to a case where the duty of the broker to his employer calls for the exercise of his judgment or discretion when he must confine himself to acting for the person who employed him and look solely to him for his reward. But when he is employed, simply to find a purchaser upon terms fixed by his employer, his duty is performed by bringing to the seller one who is willing to purchase upon such terms. He has no discretion to exercise, and there is no reason why he should not be permitted to take from the purchaser such compensation as he may see fit to give for the benefit he has received by being informed of the fact that he would be able to make such a purchase. . (Knauss v. Krueger Brewing Co., 142 N. Y. 70.) In the case at bar it is evident that the terms of the sale were fixed by the defendants themselves, and that all the plaintiff had to do in that regard was to state to the intending purchaser the price and the terms of payment upon which the property could be bought. But there are many other things which he might do which are not matters of discretion; for instance, in this case it appears that he not only sought a purchaser but informed himself as to the extent, the value and the income of the property, and learned what it was composed of and the liens upon it, and obtained other information which could only be acquired with effort and much trouble, and which undoubtedly tended to bring about the. purchase of this property by Eldridge. We think that when the court charged the jury as it did, it had stated quite as favorably to the defendants as they were entitled to have the limit of the right of the plaintiff to make a contract for compensation with Eldridge, and when they found, as they might, that with respect to all matters of negotiation no discretion was vested in the plaintiff, they were then justified in finding further that he was entitled to a verdict against the defendants. It is not to be forgotten that there was practically no dispute that, — 208 — after the defendants learned that Eldridge had made this offer to the plaintiff for his compensation,, they adopted the arrangement themselves and' guaranteed its payment, and it seems to have been understood between them and the plaintiff, not only that if Eldridge did not make the payment of this $1.0,000 it would be made by the defendants, but that it was to be taken by the plaintiff as his full compensation upon the sale of the Fourteenth Street or upper ferry; so that the plaintiff if he had asked for it would have been entitled to a charge that it was a question to go to the jury whether the defendants had not acquiesced in his contracting with' Eldridge for a compensation and adopted that agreement as a mode of payment of his compensation so that they were thereafter precluded from setting up its invalidity. But it is said by the defendants that the court erred in refusing to direct the jury to disregard the evidence of the plaintiff and his witnesses as to the value of his services, and that the, court should have directed the jury to disregard such evidence. The defendants claim that this evidence was’ admitted upon the theory that the contract with them called upon him to manage the negotiations between the intending purchaser and the defendants, in which there was left open not only the question of the nature of the property and the advisability of its purchase, but also the pi'ice to be paid and the terms of payment, and as the case was submitted to the jury upon the theory that they might find that these elements were not present in the employment of the plaintiff, therefore the evidence was misleading and should not have been considered by the jury in fixing the value of the plaintiff’s services. We do not find that any exception was taken to the refusal of the court to charge the jury to disregard the evidence in question. For that reason nothing in that regard is presented for our consideration. We have examined also all the exceptions taken by the defendants and presented in the various points' which have been submitted. We find none of them sufficient to warrant the reversal of the judgment. As to the amount of the verdict, it was undoubtedly large, yet upon the whole testimony, taking into consideration the extent of the property, the nature of the employment, and what is shown to be the prevailing rate of compensation for services of that nature, we are unable to say that it was more than the plaintiff was entitled — 209 — to expect when he assumed the employment. It must be remembered that although the plaintiff was fortunate enough to procure this purchaser within a short time, yet he had no reason to expect such good fortune at the time of assuming the agency, and his right to compensation for these services is to be determined by the end that was accomplished, and the time that was taken in the bringing' of it about is not the only thing to be considered, because if the transaction had taken a longer time he would not have received any greater compensation for it, and, therefore, if he was fortunate-enough to hit upon a purchaser with little delay, there is no reason why he should not recover the full compensation. The judgment and order should, therefore, be affirmed, with costs Van Brunt, P. J., Patterson and Hatch, JJ., concurred; Ingraham, J., dissented.