Rockwell v. Newton

Pardee, J. Upon the discovery of the fact that there was a lien upon the property in addition to the amount represented by Smith in the negotiation with the defendant, the latter had the right to determine for himself that the oral proposition made by Smith was not satisfactory. He was under no obligation to give him any notice, he being chargeable with knowledge that his taxes remained unpaid and constituted a lien upon his land. No duty rested upon the defendant to take the initiative in re-opening negotiations. Smith at no time made any proposition embracing the truth concerning the property, which the defendant would accept; the latter did not place himself in any position which required him to ask for or make a different one; he stood where he could reject the one made as soon as he knew what, in fact, its terms were. The error of Smith concerned the property in a most important particular. The defendant finding during the preliminary negotiations that this error had intervened, declined to continue them; he had no knowledge as to either the ability or willingness of Smith to discharge the lien; indeed the presumption might well be against both. Neither party having substituted anything in the place of the rejected proposition the whole matter ended. Inasmuch as no exchange was in fact effected for the reason that the minds of. the parties did not meet upon any common point, we think that the plaintiff has never performed the condition precedent upon which his right to recover brokerage rests. There is error in the judgment below. In this opinion the other judges concurred; except Park, O. J., who did not sit.