Finck v. Schaubacher

Clarke, J. This is an action to recover a broker’s commission for procuring a person ready, able and willing to make a loan on bond and mortgage. The contract was in writing under seal signed by the defendant, and was an application for $1,000 on a second mortgage at six per cent, for one and a half years, bond of defendant, location 316 East Forty-fourth street, present mortgage $10,660, at five per cent., held by Mrs. Downey, and provided for the payment of fifteen per cent, brokerage fee. A lender was procured ready, able and willing to perform, but upon examination of title an additional mortgage to the one set forth in the application was discovered, which, if undisposed of, would have made the proposed $1,000 mortgage a third mortgage instead of a second. The lender was unwilling to take a third mortgage, the defendant was unable to get rid of the existing second mortgage, the negotiations fell through and the broker sued for his commission. Upon the trial defendant offered evidence tending to show that prior to the making of the written contract defendant disclosed the fact that there was an existing second mortgage on the property and that the contract was made by plaintiff with knowledge of that fact. This evidence was admitted dver objection and under exception and the case was sent to the jury under a charge — duly excepted to — which submitted to the jury the question as to whether or not plaintiff knew of this second mortgage at the time of the making of the contract and instructed the jury in effect that if they found that the defendant did tell plaintiff that there was a second mortgage plaintiff could not recover. [549] In this there was obvious error, as the evidence directly tended to vary the written contract and the instruction entirely ignored the binding effect of that contract. Even if the plaintiff had known of the existence of a second mortgage, non constat, but that-the owner would have so arranged matters as to have substituted the proposed mortgage for it — in fact, some efforts were made in this direction — the contract was plain detailed, explicit — plaintiff did all he was required to do thereunder. Written contracts are not to be rendered meaningless and abortive by parol evidence under such circumstances as are disclosed in this case. Judgment reversed and new trial ordered, costs to abide event. Bischoff, P. J., and Leventritt, J., concur. Judgment reversed and new trial ordered, costs to abide event.