Goldsmith v. Cook

Per Curiam. The plaintiff swears that the defendant employed him as a broker to sell the realty in question for $13,000; that he procured Marx Binaldo as a purchaser at that price, and that the defendant refused to sell unless Binaldo paid $250 more for the property, which Binaldo refused to do. The defendant denied the employment, and claims that on the same day he sold the property to Annie E. Crooker for $13,150. The evidence was conflicting, and the case had to go to the jury. The fact that the defendant employed and paid another broker, who effected a sale to another person, was not a defense; and the evidence respecting it was incompetent, and therefore properly excluded. Jarvis v. Schaefer, 105 N. Y. 289, 11 N. E. Rep. 634. It is settled that when one of the contracting parties either prevents or waive-, the literal performance of a condition precedent, which the other is ready and offers to fulfill, he cannot avail himself of such non-performance to relieve him from his own obligation. Moses v. Bierling, 31 N. Y. 463; Risley v. Smith, 64 N. Y. 576; Bank v. Drumgoole, 109 N. Y. 63,15 N. E. Rep. 747. The evidence sufficiently sustains the verdict, and we find no error requiring a new trial. Judgment affirmed, with costs.