Hattenbach v. Gundersheimer

Pryor, J. The action is by the broker against the seller to recover a commission “of — per cent, of the selling price, if he sells my bakery, or sends a party that does buy it.” Such, in terms, was the written stipulation of the defendant. The plaintiff produced a purchaser, who did buy, and to whom the defendant did sell, the bakery. The defendant signed the contract of sale, and accepted $100 in part payment, but afterwards refused to carry out the sale, unless the buyer would secure the lease on the premises. This was not a term of the contract, and by insisting on it the defendant was the cause of the miscarriage of the negotiations; but the plaintiff had already fulfilled his engagement by presenting a purchaser who did buy, and to whom defendant did sell, by an agreement obligatory on both parties. It was then too late for defendant to escape liability to plaintiff for his commissions. Geoghegan v. Kelly, 11 N. Y. Supp. 704. The judgment is affirmed.