Van Lien v. Byrnes

Daly, J. Tbe plaintiff is a member of tbe firm of Van Lien & Co., who are brokers, engaged in tbe business of procuring loans upon real estate. Tbe defendant, Bymes, wished to obtain a loan of $9,000 upon two bouses; and one Beman, who was acting as tbe clerk of Van Lien & Co., went to tbe defendant, and the defendant agreed to pay one per cent commission for procuring tbe loan. Beman took bis application, and introduced bim to oné Spaffard, another broker, who introduced tbe defendant to one St. John. St. John agreed to loan $7,000 upon tbe bouses, and tbe defendant agreed to take it; but, a week [136] after bis interview with. St. John, the defendant, finding that'he could not get along with the $7,000, went with Spaffard to St. John, and the loan was given up. Spaffard afterwards obtained another loan for the defendant, for which, it appears, the defendant paid him a commission. The action was brought by the plaintiff to recover compensation for procuring the loan of $7,000; that is, he claimed for commission due him to the amount of $70. It further appeared that Spaffard told the defendant that he (Spaffard) had nothing to do with the commission from him; that he (Spaffard) would settle with YanLien & Co., who employed him; and Spaffard testified that Yan Lien & Co. had settled with him. ^^The case discloses that’a person was procured who was ready and willing to loan $7,000 upon the security that the defendant Lad to offer; and that, though the defendant was anxious to get $9,000; he concluded to take the $7,000, though he afterwards changed his mind. It does’ not appear that the payment of a commission was to depend upon his obtaining exactly the sum of $9,000; and, from his consenting to take a less sum, the law would adjudge an implied agreement on his part to pay a just and fair compensation to the plaintiff for his services in assisting the defendant to procure that sum. It is urged, however, on the part of the defendant, that, as he afterwards changed his mind, and did not accept the proposed loan of $7,000, he is not bound to pay anything to the broker; that, though a person .was procured who was willing to loan him $7,000, which he was at first willing to take, yet, having concluded afterwards not to take it, he has derived no benefit from what was done by the plaintiff .or his clerk, but has obtained another loan,-through another.-broker, for which he has paid a commission. We 'are referred’ to several English cases (Read v. Rann, 10 Barn. & Cres. 438 ; Dalton v. Irvin, 6 C. & P. 289 ; Brood v. Thomas, 7 Bing. 101) as authorities for the doctrine, that where a broker undertakes a particular business, he can recover nothing for his services unless that business is completed; though the person for whom the broker acts has, in the transaction nego [137] tiated by the broker, made a bargain, which he afterwards unwarrantably refuses to complete and carry out. These cases, however, are founded upon a mercantile usage prevailing in the city of London, by which nothing is allowed to the broker unless the matter brought about by his instrumentality is completed. In all these cases, evidence of the .custom was given, and they were decided with reference to it. The reason of the custom, as stated by Tindal, C. J., in Brood v. Thomas, being, that nothing was allowed to the broker unless the transaction was consummated, because the rate of payment established by the custom, if the business was completed, was greater than would otherwise be a fair compensation' for the broker’s services. This was merely recognizing that, by the custom of London, a brok^s-in that city was not entitled to icompensation for anything he might do for a party, which was not finally consummated, but was engaged in 'the prosecution of a general business, in which the large compensation.- he was entitled to receive, where the transactions he negotiated were completed, was regarded as a fair equivalent for his loss of time and service in matters not completed by the parties. It was therefore held in these cases that the broker must recover according to the usage or not ht‘ all, as all ¡parties, in the absence of proof of a different contract; were presumed to contract with reference to the custom, and no other contract could be implied. Where no custom is shown, a broker, like any other person who performs service for another, is .entitled to compensation $ and it matters not whether what he-has done prove beneficial to the party who employs him or not, if he has fully performed what he undertook to do, he is entitled to be remunerated for his services. In this case, the plaintiff’s clerk undertook to .procure for the defendant a loan of $9,000 upon his property, and, through the steps taken' by Beman, the defendant was brought in connection with a per-w.ho was willing to loan $7,000 upon it, which the defendant was willing to-take. If the defendant had received that amount from St. John, he would have been indebted to the exertions of the plaintiff’s clerk for procuring it, and could thére be a doubt [138] but tbat in tbat case tbe defendant would be bound to pay something to tbe plaintiff for rendering tbat service ? Having agreed to take tbat sum, and thus dispensed with all further sei vice on tbe part of tbe plaintiff, be concludes, a week afterwards, to change bis mind, and declines to take it. Now, shall tbe broker get nothing for bis time, knowledge, and exertions in procur. ng a loan, with which tbe defendant is satisfied and agrees to take, but afterwards concludes to decline ? If it appeared tbat brokers in this city, where tbe transactions they negotiate are completed and carried out by tbe parties, are accustomed to receive a rate of compensation fixed with reference to their being subject to loss of time and service where tbe business they negotiate falls áji'ough, it might be very well, in a case like the present, to bold tbat tbe plaintiff should get nothing; but, in tbe absence of proof of any such usage or custom, would .it be just and equitable to say tbat be should give bis time and attention to tbe defendant’s business and receive nothing for it; tbat tbe defendant should avail himself of tbe services of tbe plaintiff’s clerk in discovering a person who was willing to make a loan upon bis property, and be under no obligation to pay anything for tbe service ? If tbe plaintiff was not engaged in this particular business of procuring loans upon real estate, or if tbe agreement with Beman was, tbat bis receiving compensation was to depend upon bis obtaining the exact sum of $9,000, then, in tbe one case, tbe service might be regarded as a mere incidental or voluntary one, and in tbe other as a contract not performed. But it was a service rendered by tbe plaintiff’s clerk in tbe regular course of business; and tbe evidence would not have warranted tbe justice in concluding tbat tbe promise to pay was conditional. The defendant bad the benefit of tbe plaintiff’s knowledge and services, and might have obtained tbe $7,000, and, if he concluded afterwards not to take it, be was bound to make some compensation to tbe plaintiff. Tbat tbe plaintiff, through his clerk, was tbe procuring cause of tbe loan of $7,000 being offered to tbe defendant there can be no doubt. It is true, tbat Beman went to Spaffard, another bio139 ter, and it was through Spaffard that St. John was found. But that makes no difference, Spaffard considered himself employed by the plaintiff in the matter, and the plaintiff paid him for his services. Nor does it make any difference that Beman did not disclose to the defendant that he was acting as the clerk of the plaintiff. An undisclosed principal may always sue to enforce rights acquired on his behalf by his agent, though he does so subject to any equities which the defendant may have against the agent. Taintor v. Prendergast, 3 Hill, 72. Beman agreed that the defendant might settle with Spaffard. He told the defendant that any settlement he made with Spaffard would be satisfactory to him; and undoubtedly any settlemeiA.. made with Spaffard would bind the plaintiff. But no evidence^ was given or offered of such a settlement. If anything had been paid by the defendant to Spaffard in the presence of the witness Mann, the conversation between the defendant and Spafford respecting such payment, and what it was intended to discharge, would have been competent; and as Spaffard had denied that any such settlement had taken place, a receipt from him, disclosing the fact of such a settlement, might have been given in evidence to contradict him. But conversations between the defendant and Spaffard, three weeks after the defendant had declined the $7,000 loan, were wholly immaterial, unless they related to an actual settlement with Spaffard. The defendant was not entitled to ask for such conversations generally. If any payment had been made to Spaffard, in discharge of the claim, or any settlement effected with him, by the defendant in the witness’s presence, that fact could have been shown by a question put directly to the witness. He might have been asked ii had heard any conversation between them, or bad seen any money paid relating to a settlement of the claim, and if he replied in the affirmative, he would have been allowed to state what be had seen and heard. But he was asked if thé loan between St. John and the defendant and the one subsequently taken was talked over in his presence. Whether it was or not, [140] was entirely immaterial. Tbe question should have been confined to conversations relating to a settlement. If Mann bad witnessed any settlement, be should have been directly interrogated as to tbe fact; or if, after tbe general inquiry was excluded, the defendant should have made a distinct offer to prove a settlement of tbe claim in a conversation between Spaffard and tbe defendant, it would have been error on tbe part of tbe justice to have refused to receive tbe evidence. But no such offer was made, and it is very plain that tbe defendant bad no such evidence. If any receipt was given, it should have been produced. The defendant was not at liberty to ask if one bad not been given embracing both claims. This was not asking for facts, Apt for the opinion of tbe witness; and was properly excluded. *5o also were tbe questions relating to the subsequent loan. They were wholly immaterial. Tbe plaintiff proved that be bad rendered service to tbe defendant, to enable him to procure a loan ujoon bis property, for which be sought to be compensated ; and what tbe defendant did, after be bad declined to take that loan, could not affect tbe question of bis liability to tbe plaintiff for aiding him to procure a loan, which he might have bad, and was at first willing to take, but afterwards declined. Tbe justice appears to have allowed at tbe rate of one per cent, upon tbe $7,000; and as there was evidence that the defendant agreed to pay that amount for obtaining tbe loan of tbe $7,000, and also of one per cent, if $9,000 was obtained, I think be estimated tbe value of tbe service as correctly as be could. Judgment affirmed.