Erben v. Lorillard

Lboítard, J. The whole of the original agreement between the parties was competent as evidence for the plaintiff’, although it necessarily included that part which related to the lease. It was a part of the same conversation, occurring at the time the defendant employed the plaintiff to negotiate for him in the purchase of the land. The proof of an agreement to give a lease was a part of the res gestee to establish the retainer, and not to form the rule of damages. The nature of the plaintiff’s claim is an admission that he has no claim to any pecuniary compensation for his services, if the agreement with the defendant had been performed on his part. When the defendant invited the aid of the plaintiff in his negotiations, he told the defendant he was not a broker; and that he did not expect a broker’s commission, may be fairly inferred. Another and wholly different mode of compensation was agreed on. It was necessary to show what the consideration or advantage for his services was to have been by the agreement, before it could be ascertained by the court that the plaintiff should be permitted to demand any other mode of reward. If the agreement to give a lease had been valid, the plaintiff could have claimed its value as his rate of damages. That portion of the agreement by which the defendant promised to give a lease for twenty-one years, was void by the statute; but it was not until the nature of the contract in this respect was in evidence that the court could declare the proper rule in relation to the damages which the plaintiff was entitled to recover. The rule was laid down by this court, when the casé was here on appeal after a former trial and verdict for the [571] plaintiff, that the plaintiff was not authorized to give evidence as to the value of the lease for twenty-one years which the defendant had promised to execute, but was entitled to recover only the sum which his services were worth, and this rule we now reaffirm. The question in this case, both in respect to the admission of evidence and the charge, refers to the mode of ascertaining the value of the plaintiff’s services; it being insisted by the defendant, and conceded by the plaintiff, that the agreement for the lease, which was to have been the consideration for those services, was wholly void. The property which the defendant sought to purchase was of considerable dimensions, in a compact part of the city, capable of adaptation, from its size and situation, to various kinds of public or private use. The plaintiff was an organ manufacturer, and not a real estate broker. He owned other property in the immediate vicinity, and he had offered to the owner to take a lease from them, or any purchaser, at an annual rent of eight per cent upon its value, or upon the price paid by the purchaser. These facts were known to the defendant. He had applied to the owners to become the purchaser, and the price named to him was seventy-five thousand ($75,000) dollars, and he had been told that Mr. Erben would take a lease for twenty-one years at eight per cent on that price. This statement was made to him in reply to his objection that the price was too large, and he was compelled to admit its force. He could not in opposition to that -fact expect any reduction from the price while Mr. Erben was willing to pay such a rent. He then called on Mr. Erben, ascertained.from him, personally, that he would take such a lease; stated to Mr. Erben that the price demanded was too large, to which he assented, and expressed the opinion that it could be had for less. Both were interested in obtaining the land at the smallest price, as the rent was expected to be fixed at a certain percentage on the price [572] to be paid. It Avas the opinion of both that Mr. Erben, from his social and friendly relation to the officers of the gas company, who were the owners of the land, possessed advantage for negotiations to purchase the premises superior to any other person. . Mr. Lorillard then authorized Mr. Erben to negotiate the purchase for him at the price of sixty thousand - ($60,000) dollars. Mr. Erben, after considerable time spent in the negotiation, obtained the consent of- the owners to sell at that price. Mr. Lorillard then refused to take the land, as so much time had elapsed since the negotiation had commenced, and he had made other use of his money. The plaintiff had not been notified to terminate negotiations, although nearly two months had elapsed. He was again authorized to continue negotiations on a new. footing; the defendant to pay fifty-five thousand ($55,000) dollars, to be secured by a mdrtgage on the premises, payable in one year. After some further negotiation the purchase was effected substantially on these terms. The plaintiff Avas occupied in carrying on the negotiation over three months. The defendant soon afterward leased the premises at a rate equal to eight per cent per annum for a term of twenty-one years on the highest sum demanded by the OAvner as the price of the land (or on $75,000). All these facts were proven, or are conclusions directly deducible from the proven facts. Without any reference to the agreement for a lease, they establish that neither the plaintiff nor the defendant expected to receive or pay the customary brokerage on the sale of real estate. The facts stated are all necessary and competent elements in ascertaining the benefit or advantage obtained by the defendant through the aid of the plaintiff’s services, and their fair and reasonable worth. Where a broker has been employed, and no rate or special mode of compensation has been agreed on, the [573] customary rate forms the proper rule of value for his services. But that rule is not necessarily applicable in an exceptional case like the present. The reasonable worth may be less or more than the usual brokerage in any exceptional case. The judge committed no error in admitting testimony showing the whole agreement between the parties, including the conversation relating to a lease, and also the evidence of the value of the land, the rate at which it was subsequently rented, and also in refusing to charge that the plaintiff was entitled only to the customary brokerage, and that, in effect, they must exclude all evidence concerning the lease in considering the value of the plaintiff’s services. The agreement to give a lease is one fact tending to preclude the application of the usual or customary rate for the compensation of real estate- brokers; and the judge afterward correctly limited the effect of this evidence by directing the jury not to consider any supposed benefit to the plaintiff of a lease, nor any rise in the value of the property. There was evidence admitted of the value of the plaintiff’s services, according to the opinion of several witnesses, who appear, on cross-examination, to have no acquaintance with services of the description of those rendered. The facts were all before the jury, and they were as competent to fix the value of the plaintiff’s services as the witnesses who gave their opinions. As it was not shown that these witnesses possessed any superior capacity for estimating the value of the plaintiff’s services, the admission of their evidence as to the value of the services was clearly erroneous. This error is fatal to the verdict, and there should, for this reason, be a new trial. It was also erroneous to permit evidence as to the subsequent use of the premises, or the price at which they [574] were sold after the lapse of some time, although I do not perceive that any of the evidence on this subject affected the result. The value of the property at the time of the sale was proper to be shown, with a view to the value of the services. There must be a reversal of the judgment, and a new trial, with costs to abide the event. All concur in reversal, but upon several distinct grounds. Judgment reversed.