Ryer v. Turkel

The opinion of the court, upon the case as above stated, was delivered by Green, J. 1. There are some legal rules, not seriously denied in argument and not to be discussed at length, which may well be stated at the outset, as thereby our reasoning may be clarified and the basis of it made sure. In a ease like the present the writ of certiorari is used not simply to remove the cause from the inferior court, but to correct some error which has crept into the proceedings therein. Ayres v. Bartlett, 2 Gr. 330, 332 (1834). The function of a writ is that of a writ of error. Goles v. Blythe, 40 Vroom 666, 668 (1903). The Supreme Court in such a ease does ’not settle disputed facts or review the evidence, but accepts the findings of the inferior court upon the facts, if there be any legal evidence to warrant such findings. No intendment will be taken against the judgment below, rather in favor of it. Roehers v. Remhoff, 26 Id. 475, 478 (1893); Somers v. Wescoat, 37 Id. 551, 552 (1901); Britton v. McDonald, 14 Id. 591, 593 (1881); Demster v. Frech, 22 Id. 501, 502 (1889). When, on error to the Supreme Court, the judgment is again removed into the Court of Errors and Appeals, this court, in its turn, accepts the findings, inquiring only whether there be any legal evidence to sustain them. Coles v. Blythe, 40 Id. 666, 669 (1903); see, also, Doolittle v. Willet, 28 Id. 398, 399 (1894). It being now established that, when the trial has been before the judge of the District Court without a jury, the proper practice is to send up the facts found by him from the testimony, and not the testimony itself — Van Vechten v. McGuire, 41 Id. 657, 659 (1904) — we may not assume, when no attempt is made to perfect, or, in a proper case, to dispute the findings, that the trial court either received evidence that was inadmissible or irrelevant — Wallace v. Hendee, 39 Id. 574, 576 (1902) — or, on the other hand, found as a fact that which had no evidence to support it. Barclay v. Brabston, 20 Id. 629, 631 (1887). From every [684] point of view, in cases like the one in hand, the findings of facts below should be accepted in the Appellate Court. Gore v. Herring, 43 Id. 423 (1905). 2. Under well-settled principles we consider only those points of a plaintiff in error in this court which were taken in the District Court and which were raised and determined in error in the Supreme Court, or which, being involved in the case made in the Supreme Court, might or should have been there determined. Oliver v. Phelps, Spenc. 180, 181, 185 (1843); S. C. on error, 1 Zab. 597, 609 (1845) ; Trent Tile Co. v. Fort Dearborn National Bank, 25 Vroom 33 (1891); S. C. on error, Id. 599 (1892); Van Alstyne v. Franklin Council, 40 Id. 15, 16 (1903); S. C. on error, Id. 672, 673 (1903); Leaver v. Kilmer, 42, Id. 291, 292 (1904). Addressing ourselves to the legal merits of this case, we now inquire whether, in the District Court, Ryer, the plaintiff, should have been nonsuited, or judgment final should have been given for Turkel, the defendant, (a) because Ryer had not, by himself alone, produced a purchaser ready and willing to enter into a contract of purchase on the terms mentioned in the agreement, in writing, between Turkel and Ryer, and therefore was not entitled to commissions, or (b) because Ryer had not brought Turkel, his principal, and the proposed purchaser, Harriet E. Phelps, to an agreement for sale on the terms mentioned in the authority to sell so given by Turkel to Ryer, and, on that ground, was not entitled to his commissions. It will be observed that the first branch of the inquiry has to do with the presence or absence of personal service on the part of Ryer, and that the second branch has to do with the legal import of the power conferred by the card of authorization and of the contract to which Harriet E. Phelps had subscribed her name. 3. (a) It may indeed be true that, under the maxim, delegata poiestas non potest delegari, an agent or broker whose employment involves any exercise of judgment or discretion may not transfer to another the right and power to discharge his own duty. Cl. & S. Ag., § 342; Dwelling House Insurance Co. v. Snyder, 30 Vroom 18, 20 (1896). nevertheless, [685] when an act to be done is ministerial or mechanical only, the agent may employ another to do it, and, in such case, the act is as well performed by the sub-agent as by the agent. Cl. & S. Ag., § 345d; Titus et al. v. Cairo and Fulton Railroad Co., 17 Vroom 393, 418 (1884). The finding of the trial court was that Older was an employe of Eyer and acting for him, and there was nothing whatever to show that Older’s part in procuring a purchaser was other than ministerial, or that Eyer had attempted to divest himself of his functions or of his responsibility to Turkel, his principal. No legal error is perceived in the case below so far as this branch of the inquiry is concerned. (6) It is to be accepted as settled law that, as between the parties themselves, oral evidence is not admissible to contradict a written agreement. Leslie v. Leslie, 5 Dick. Ch. Rep. 155, 160, 161 (1892), and Bandholz v. Judge, 37 Vroom 80, 85 (1901), are recent illustrations of the rule in equity and at law. Nevertheless, the rule does not, in a proper case, forbid the throwing of light upon the meaning of the written agreement, by evidence of the circumstances of the parties to it, or of their conduct after its execution, or of the condition of its subject-matter. Axford v. Meeks, 30 Id. 502, 503 (1896); Naughton v. Elliott, 2 Robb. 259, 267 (1904). The trial court found that there was an agreement, in writing, between the parties to this suit (vide the same), and that the terms and conditions upon which the proposed purchaser, Harriet E. Phelps, was willing to purchase were also in writing (vide the same); and further, the trial judge received the testimony of Turkel that he had told Eyer that the property was to be sold for cash. Prom the findings of fact three conclusions may have been possible — firstly, that Turkel had authorized Eyer to sell the equity of redemption for $9,500 in cash, thus making the total cost to the purchaser $15,500; secondly, that Turkel had given authority to sell for $9,500 as the whole price, of which $6,000 were to be used at once in paying off the mortgage encumbrance; and, thirdly, that Turkel had given authority to sell for $9,500 as the whole price, of which $3,500 were to be paid to him, and [686] $6,000 were to be kept back by the purchaser, in order to the future discharge of the mortgage debt. The first of these conclusions seems to have been suggested by no one, either at the trial or on the argument upon the reasons in certiorari, and it should not now be adopted here. The second is that for which the counsel of the plaintiff in error contends in his present brief; but the obvious objection is, that the executing of the authority in that form was impossible without the consent and co-operation of the mortgagee, inasmuch as, from the uncontradicted evidence, the mortgage debt would not be due and payable until three years should have elapsed. That an authorization in that form was the intent of the parties to the written agreement was and is not to be accepted. The third and last conclusion was, undoubtedly that to which the trial court came in giving judgment for the plaintiff, inasmuch as, in order so to do, the judge must have found further that the terms and conditions upon which the purchaser produced by Ryer was willing to buy were within the scope of the authority given by Turkel to him. An authorization to sell at a price, of which part is to be kept back by the purchaser for the discharge of a mortgage debt, is not unusual or unlawful in this state. Heid v. Vreeland, 3 Stew. Eg. 591, 593 (1879). If the conclusion of the District Court judge was one of fact simply, we do not review the finding on writ of error. Brewster v. Banta, 37 Vroom 367, 369 (1901); Snyder v. Commercial Union Assurance Co., 38 Id. 626, 627 (1902); Suburban Land Improvement Co. v. Vailsburgh, 39 Id. 311, 312 (1902). If the conclusion was on a mixed question of fact and of law, then it is not to be disturbed in error, if the conclusion was legally inferable from the facts proven. Stout v. Leonard, 8 Id. 492, 493 (1874); Delaware, Lackawanna and Western Railroad Co. v. Newark, 34 Id. 310, 312 (1899); Burr v. Adams Express Co., 42 Id. 263, 270 (1904). We perceive no legal error so far as the second branch of our inquiry is concerned. It may be worth while to remark that the oral testimony of Turkel, to the effect that the property was to be sold for cash, [687] seems either to have supplied an obvious omission in the card of authorization — Ackens v. Winston, 7 C. E. Gr. 444, 446 (1871) — or though, perhaps, not in strictness cumulative— Dundee Manufacturing Co. ads. Van Riper, 4 Vroom 152, 156 (1868) — to have tended to support the same conclusion -which the other evidence supported. In failing, therefore, to pass upon the strict propriety of Turkel’s testimony, the present opinion cannot become a precedent for the admission of oral testimony in general where there is a contract in writing. 4. The undisturbed findings of fact being that the plaintiff below, Eyer, had procured one Harriet -E. Phelps to be an able and willing purchaser of the house and land upon the terms and conditions on which the defendant below, Turkel, had authorized a sale, the law applicable to the facts is not doubtful. The general rule is, that the right of the agent or broker to his commissions is complete, when he has procured a purchaser able and willing to conclude a bargain on the terms on which he was authorized to sell. Hinds v. Henry, 7 Vroom 328, 332, (1873); Runyon v. Wilkinson, Gaddis & Co., 28 Id. 420, 421 (1894); Crowley Company v. Meyers, 40 Id. 245, 248 (1903); Courter v. Lydecker, 42 Id. 511, 512 (1904). Such right is not to be defeated by any default of the principal. Hinds v. Henry, supra; Somers v. Wescoat, 37 Vroom 551, 552 (1901). The plaintiff below should not have been nonsuited, neither should judgment have passed for the defendant below on any ground by him alleged. The right of recovery having been properly adjudged in the District Court, and confirmed in the Supreme Court, the judgment will be affirmed here, with costs, and it is so ordered. For affirmance — Pitney, Chancellor, The Chiee Justice, Garrison, Swayze, Eeed, Trenci-iard, Bogert, Vredenburgii, Vroom, Green, Gray, Dill, J.J. 12. For reversal — None.