Wiggins v. Estate of Coddington

Guy, J. This action was brought to recover broker’s commissions for procuring a purchaser for real property belonging to defendant. The defense was a general denial. Plaintiff solicited of defendant’s counsel an opportunity to sell the property, which defendant agreed to, fixing the price at $75,000. Several offers of purchasers at a less price and on unsatisfactory terms were presented by plaintiff and rejected. During all these negotiations nothing was said about encroachments. Plaintiff asked defendant to reduce the price to $68,000, and asked for a memorandum of sale at that amount to show to a prospective purchaser; defendant prepared and gave to plaintiff such a memorandum, showing encroachments by a neighboring building to the extent of five and one-half inches at one point; plaintiff’s proposed purchaser refused to purchase solely because of the encroachments as shown by the memorandum. Plaintiff claims that he produced a purchaser ready and willing to purchase defendant’s property on the terms previously fixed by defendant, which did not refer to encroachments. The court charged in effect that mere silence as to the encroachments, on the part of the prospective seller, might be a misrepresentation and charged that the jury “ may infer wilful misrepresentation by silence.” [441] In this the learned trial court erred. The broker is an expert in such matters and it is his duty to inquire as to terms of sale and as to matters affecting the general character of the property. There is no duty on the part of a real estate owner to inform a broker of encroachments unless he is asked about them. It is not misrepresentation, either wilful or inadvertent, for him to remain mute, when he is not asked, and when he is under no duty to volunteer or speak. Ranger v. Lee, 66 Misc. Rep. 144, 146, 147; Weibler v. Cook, 77 App. Div. 637; Levy v. Sonneborn, 78 Misc. Rep. 50-52; Keough v. Meyer, 127 App. Div. 273, 274; Hausman v. Herdtfelder, 81 App. Div. 46-48; C. H. Diamond & Co. v. Hartley, 47 id. 1, 3, 4; 38 id. 87, 92; Curtiss v. Mott, 90 Hun, 439; appeal dismissed, 158 N. Y. 663. So far as appears the defendant had a good, marketable title to the realty and its appurtenances, which he offered to sell. No terms but the price had been determined before the delivery to plaintiff of the memorandum of sale. The plaintiff broker was not entitled, under such circumstances, to his commission until he produced a purchaser who reached an agreement with the owner upon the price and terms upon which a sale could be made, or until the minds of the owner and proposed purchaser met not only upon the price but upon the essential terms of an agreement to purchase. Arnold v. Schmeidler, 144 App. Div. 420, 427. The plaintiff failed to produce such a purchaser and has not made out a cause of action. The judgment must be reversed, with costs, and the complaint dismissed, with costs. Seabury and Bijur, JJ., concur. Judgment reversed, with costs.