Bendell v. Fisher

Hinman, J. The plaintiff, suing as a licensed real estate broker, seeks to recover $2,500 as his commissions upon a purchase and sale of real estate. The action is brought against the defendant as purchaser. The case was submitted to the jury upon an erroneous theory. McCarthy was not the owner of the property and he was not authorized to sell it. The court so charged and added that “ the only question is whether he represented he was.” He added: “ If he [the plaintiff] took Fisher up there and they agreed on the price and McCarthy said ‘ yes,’ then he is entitled to the commission whether the sale was consummated or not.” That [499] sale was not in fact consummated and the court so charged. The property was owned by a corporation of which McCarthy was an officer and large stockholder and the corporation later did sell the property to a corporation formed by the defendant for $60,000, which was $10,000 more than the consideration alleged to have been agreed upon in the original negotiations with McCarthy. The court told the jury that a verdict for the plaintiff could not be predicated upon the fact that a sale was made later. He added: “ As a matter of fact the consideration was $10,000 more, and that does not support the original transaction. I have already charged upon that.” The theory submitted to the jury by the court was: “However, the contract that the plaintiff claims here was that he was to buy it for $50,000 and McCarthy agreed to sell, and that is the question I submitted.” The attorney for the appellant took this exception and made this request to charge: “ I desire to except to that portion of your Honor’s charge in which you say in substance that if the jury find that McCarthy said he would sell for $50,000 and Fisher said he would give $50,000, that then this plaintiff is entitled to his commission, and I ask your Honor to charge that before a broker is entitled to commissions that he must have produced in this case a seller of this property who was ready, able and willing to sell at $50,000.” The court replied: “That is true. However, if he represented that he owned it, that is all that was up to the broker. If I go out on the streets and highways and a man says: ‘ Here is my farm, you go out and sell it if you can, I will take $10,000 for it,’ if he doesn’t own 10 cents, if a man produces a customer that is able and willing to purchase, I am bound to pay the commission.” The learned court overlooked the fact that his illustration had no application to this case. The plaintiff did not contract to produce a customer who was able and willing to purchase but a customer who was able as well as willing to sell, under the general rule. “ To entitle a broker to the compensation called for by his contract of employment, he must produce a person who is ready, able and willing both to accept and live up to the terms offered by his principal.” (4 R. C. L. 307, § 49.) To recover commissions upon a proposed exchange of real estate, a broker must show that the customer produced by him was the owner of the property which he offered to exchange or able to convey it as well as that after the terms of the exchange had been agreed upon the client refused to carry them out. (Woolley v. Lowenstein, 83 Hun, 155; Alt v. Doscher, 102 App. Div. 344; Mutchnick v. Davis, 130 id. 417.) “ In the absence of any stipulation to the contrary a marketable title to real property is always presumed to be bargained [500] for (Scudder v. Watt, 98 App. Div. 228; Burwell v. Jackson, 9 N. Y. 535); and when a broker produces a person who proposes to exchange property with his client that person must have good title to the property which is proposed to be given in exchange.” (Mutchnick v. Davis, 130 App. Div. 417, 419.) The plaintiff did not show that the actual owner of the property (the corporation) was ever ready, willing or able to convey it at $50,000. In fact the court presented the question to the jury on the theory that McCarthy was not authorized to bind the corporation and that the later sale by the corporation for $60,000 should not be considered. It cannot be presumed that the corporation would have adopted McCarthy’s negotiations to sell. The corporation did not sell eventually until $60,000 was made the purchase price instead of $50,000. No sale in fact resulted of which the plaintiff was the procuring cause, nor could it have resulted unless the corporation had ratified a $50,000 offer of sale orally made by McCarthy. The plaintiff had absolutely no connection with the agreement that was subsequently made with the corporation.' It is unreasonable of course to assume that the defendant capriciously paid $10,000 additional as a mere subterfuge to avoid the payment of a $2,500 commission to the plaintiff. The conclusion is irresistible that the plaintiff accomplished nothing for the defendant and the law does not afford him the right to commissions, for the reason that he failed to do what it is alleged he engaged to do. He failed to produce a customer who was both able and willing to sell. The charge of the court that he satisfied his engagement by producing a customer who represented that he was able to sell although he was neither the owner nor authorized to agree to convey, was reversible error. Moreover, I cannot see how the plaintiff can hope to succeed upon any theory of the pleadings and the proof and it is my opinion that the motion for a nonsuit or for a directed verdict for the defendant should have been granted. The judgment and order should be reversed, with costs, and the plaintiff’s complaint dismissed, with costs. Van Kirk, Acting P. J., and McCann, J,, concur; Whitmyer, J., dissents, with an opinion in which Davis, J., concurs.