Clendenon v. Pancoast

The opinion of the court was delivered, May 11th 1874, by Mercur, J. This suit was brought to recover commissions claimed to have been earned by the plaintiff as a real estate broker. When his evidence closed, the court ordered a nonsuit. Was this error ? The plaintiff averred that he was authorized to procure and did procure a person to bargain and buy of and from the defendant the land in question, for the price or sum of ¡§17,000. The evidence shows that the plaintiff had some negotiation with a Mr. Howell in regard to purchasing it, and they had fixed upon a time to go and examine the property. During an interview soon after between the parties, the plaintiff informed the defendant that he thought he had procured a purchaser and [215] that he had given him the whole of that week to decide. To this defendant replied, “ If your man will take it by Saturday, all right, he can have it; after this week I will not be bound.” The plaintiff communicated this to Howell. The latter examined the property, and on Saturday morning informed the plaintiff he would take the property. He however requested the plaintiff to ask the defendant whether it would be convenient to take some mortgages on account of the purchase-money. Thereupon the same morning the plaintiff told the defendant that his man would take the property. That it was Mr. Howell, and that he would like to give him some mortgages in part payment of the purchase-money. The defendant replied, “That lets me out, I won’t sell.” The plaintiff said “ No, he only said he would like to give you the mortgages, if it suited you, but he will take the property anyhow, and will pay cash, if you require it.” The defendant persisted in his refusal to close the sale, and Howell insisted upon the purchase, declaring his readiness to pay the cash as soon as the papers could be prepared. We understand the defence to rest wholly upon the fact, that when the acceptance was communicated to the defendant, it was accompanied with a request that he take mortgages for a part of 'the purchase-money. It would seem by the defendant’s answer, that at first he might have understood this request to be one of the conditions of the purchase. If so, it appears this impression was immediately corrected by the plaintiff. This is the turning-point in the case. Howell accepted the offer as to price, and upon the day designated. Did he or not change the manner of payment ? The offer to sell was for cash. Was the acceptance conditional upon the defendant’s taking some mortgages, or was it unconditional ? We are clearly of the opinion that the evidence was sufficient to have been submitted to the jury to find whether.it was not unconditional. If the jury should so find, the plaintiff had clearly sustained his averment. He had procured a person to bargain and buy the property of the defendant at the price named. We think, therefore, the learned judge erred in not submitting the case to the jury. Judgment reversed, and a procedendo awarded.