Garrisi v. Kass

Kuhn, J. (after stating the facts). Counsel for appellant bases his claim for reversal of the verdict of the jury on two grounds: 1st. That the plaintiff did not bring a purchaser ready, willing and able to buy, and, 2d. That the charge of the court was erroneous and prejudicial. We are of the opinion that there is no merit in the first contention of the appellant. The party produced by the plaintiff, who was to purchase the property and was willing to enter into the agreement, had at the time $900 cash in his pocket and was the undisputed owner of property worth six to seven thousand dollars. We think that the learned trial judge was clearly correct in saying that under these circumstances the plaintiff had produced a purchaser who was ready, willing and able to buy the property on the terms specified by the principal, and that, having produced such a purchaser, the broker became entitled to the commission whether or not the sale was made. An examination of the record shows also that the defendant, at the time the purchaser was produced, made no claim that the purchaser was unable to buy the property, but placed her refusal on other grounds. Fault is found with the language of the trial judge, where he said in charging the jury,— “I think you may rightly find from the testimony the ability to carry out the purchase which he proposed to make,” etc. Being of the opinion, as we have already stated, that the testimony is conclusive that the purchaser produced was ready, willing and able to buy, there was clearly no error in the trial judge instructing the jury in the way he did. We affirm the judgment. Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.