Whiting v. Saunders

O’Dwyer, J. The action was brought by the plaintiffs, who are real estate brokers, to recover the sum of $300, and interest claimed by the plaintiffs to be due to them as a commission agreed upon for the sale, by exchange, of a house and lot at Long Branch, N. J., and seventy lots at Verona, N. J., for three flat or apartment-houses known as Nos. 195, 216 and 220 Fourth avenue in Brooklyn, N. Y. The defendant’s answer alleges that he employed the plaintiffs as the agent of his wife, Emma Saunders, and to act for her and not for himself, and that, during the progress of the negotiations, the.plaintiff Richters made erroneous and incorrect statements to defendant in regard to the rents and taxes and mortgages on the three Brooklyn apartment-houses. In September, 1894, the defendant Saunders met the plaintiff Richters and had an interview with him, and a day or two after-wards called at the office of the plaintiffs and gave them a memorandum of his property, consisting of a Long Branch cottage and lot and seventy lots at Verona, N. J., and employed them to dispose of these properties by sale or exchange. The plaintiff Richters entered said properties on the plaintiffs’ books in the [540] name of Thorndike Saunders, as they knew noi one else as the owner of the same. Early in November, 1894, the plaintiff Richters informed the defendant that the plaintiffs had on their books three apartment-houses known as Nos. 195, 216 and 220 Fourth avenue in Brooklyn, that they represented and were acting for the owner, and would act as. brokers for both parties in an exchange. Richters gave the defendant ’Saunders a description of the Fourth’ avenue properties and all the details, and he went over and examined the properties.twice and agre'ed to make an exchange. Before the contract of exchange was drawn up and signed, the defendant Saunders had an interview with both the plaintiffs. Whiting and Richters at their office regarding their commissions on the exchange. The plaintiffs, after some conversation, agreed to reduce their commissions to the sum of $300, at which sum it was fixed and agreed on, and the defendant agreed, to pay that sum ($300). , • The' contract Was signed and executed on or about November 21, 1894, and at about this time the plaintiffs ascertained that the defendant’s wife, Emma Saunders, owned the Long Branch and Verona properties, and that the defendant had a power of attorney. The contract of exchange was carried out and completed, and the deeds were passed and exchanged on December 1, 1894, by the defendant and in his presence at the plaintiffs’ office. At the very inception of the negotiations and during their progress the defendant was fully informed that the plaintiffs had the Fourth avenue, Brooklyn, property on their books, and represented the owner of the same, and all the defendant’s dealings with the plaintiffs were all along had with a full knowledge of, and reference to, such fact. On or about December 4, 1894, the plaintiff Richters had an interview with the defendant and made a demand for the payment of the $300, being the plaintiffs’ commissions as agreed upon, which was refused. The commission of $300, as agreed upon, has never been paid, and thereafter ’this action was brought to recover the same, with interest. The action was tried on May 27, 1897, and resulted in a verdict for the plaintiffs for1 the amount claimed and interest, the sum of $345..' By that verdict the jury have found that the plaintiffs were , ■ employed by the defendant individually, and not as the agent of [541] his wife, to' dispose of the Long Branch and Verona properties by sale or exchange. It matters not whether, the title was in the name of Thorndike Saunders or Emma Saunders. If the defendant employed the plaintiffs to dispose of the properties he is liable. The testimony and the facts disclosed in the case do not sustain the defendant’s contention that the plaintiff Richters made false statements or representations regarding the rents, taxes or mortgages upon the Brooklyn apartment-houses. The defendant examined the Brooklyn apartment-houses himself, and so ascertained ■their condition, value end the amount of the rents and income, etc. This knowledge of the apartment-houses must be regarded as the basis of defendant’s consent to make the exchange, and the finding of the jury must be regarded as conclusive in favor of the plaintiffs. The fact that the plaintiffs represented both parties to the exchange of the properties and expected to receive a commission from both parties, with full notice to the defendant, and knowledge by him of such fact, .does not constitute a defense to this action. Lansing v. Bliss, 86 Hun, 205, 206; Rowe v. Stevens, 53 N. Y. 621; Bonwell v. Auld, 7 Misc. Rep. 447; 27 N. Y. Supp. 936; 57 N. Y. St. Repr. 572. “ If a party employs a broker agreeing to pay him for his service, and has knowledge that he is also to be paid or expects to be paid by the other party, the agreement will be enforced.” Lansing v. Bliss, 86 Hun, 209. And this is so, whether or not the broker’s services involve the exercise of discretion. The jury have determined the conflict between the parties and we find that their verdict is supported by a fair preponderance of evidence. None of the exceptions taken by the defendant require discussion. The judgment and order appealed from should be affirmed, with costs. McCaetht, J., concurs. Judgment and order affirmed, with costs.