Bowers v. Mills

Mr. Justice Baker delivered the opinion of the court. There was in this case no direct communication between the plaintiffs and the purchaser. To entitle the plaintiffs to commissions the burden was on them to show affirmatively that the purchaser was induced to enter into the negotiations which resulted in the purchase through the means employed by them for that purpose; to prove facts from which the jury might properly find that they were the procuring cause of the purchase of the property by Dorothy Korsak. They brought Fanny Korsak to the defendant as a prospective purchaser of the property. In the course of the negotiations with her Dorothy Korsak learned that her mother was thinking of buying the property if she could get money from her brother. She was unable to procure the money and did not buy the property. Afterwards Dorothy Korsak received $4,500 in settlement of an action brought by her against a street railroad company. She then saw defendant’s advertisement, offering the property for sale, entered into direct negotiations with defendant, purchased the property from him and paid the portion of the purchase price which was paid in cash with the money she had received from the railroad company. There is no evidence tending to show that Fanny Korsak was the real purchaser of the property, or that she has or ever had any interest in the property, or that she was at any time the agent either of the plaintiffs or of the purchaser in the negotiations which resulted in the purchase of the property. Where a broker talked about property which had been placed in his hands for sale to a person, and such person, of his own accord and not acting in behalf of either the broker or the purchaser, mentioned to another that the property was for sale and such person looked into the matter and finally became the purchaser, the agency of the broker in inducing the sale was not sufficiently direct to entitle him to a commission. Baumgartl v. Hoyne, 54 Ill. App. 496; Gleason v. Nelson, 162 Mass. 245, 38 N. E. 497; Johnson v. Seidel, 150 Pa. S. 396, 24 Atl. 687; Vandyke v. Walker, 49 Mo. App. 381; Jones v. Frost, 24 Misc. 208, 53 N. Y. Supp. 573; Antrobus v. Wickens, 4 Foster & F. 291, 19 C. Y. C. 258, note 41. Plaintiffs’ right to recover in this case finds no support in the cases of Lincoln v. McClatchie, 36 Conn. 136, or Wilkinson v. Alston, 48 L. J. Q. B. 733, 41 L. T. Rep. N. S. 394. In Lincoln v. McCatchie the broker advertised the property. A. was the personal friend of B. and knew that B. wished to purchase a dwelling house. A. saw the advertisement of the broker, went to his office and was told that the defendant had a house for sale and was given the price. A. communicated the information to B., who requested him to examine the property and report. A. did so and B. purchased the property from the defendant. It was held that the broker was the procuring cause of the sale and so was entitled to his commission. The ground of the decision is that A. acted for B. in procuring the information. He did not casually obtain it, but went to the office of the broker to obtain it, and B. acted on the information when obtained, knowing from what source it was obtained; that B. adopted the acts of A., which was equivalent to a previous request to perform the acts; that A. received the information in the capacity of a messenger for B., and that therefore the broker was the procuring cause of the sale as much as would have been the case if B. had gone in person to the broker and obtained the information himself. In Wilkinson v. Alston, plaintiff Wilkinson was employed by defendant to find a buyer, for defendant’s ship on the terms that if he did so he should receive a certain commission. Plaintiff employed White, who mentioned the ship to Wise, who was the agent of Learoyd. Wise, for Learoyd, acting on the information he had obtained from White,.purchased the ship from defendant. It was held that Wise being the agent of Learoyd, the introduction of Wise to defendant was the introduction of Learoyd, and information given to Wise was given to Learoyd, and that Wise having acted on information received from plaintiff through White, plaintiff was entitled to his commission. In both cases the right of recovery is based on the fact that the person to whom the broker gave information was the agent of the purchaser, and therefore the information was given by the broker to the purchaser. In this case, as has been said, Fanny Korsak, to whom the plaintiffs gave the information, was .not the agent of her daughter Dorothy, the purchaser. There is in the record testimony that defendant, after the sale to Dorothy Korsak, promised the plaintiffs to pay them a commission. Defendant testified that he made no such promise. If such promise was made, after the sale, it was without consideration and no action can he maintained upon it. There is in the record no evidence from which the jury might properly find that the plaintiffs were the procuring cause of the purchase of defendant’s property by Dorothy Korsak, and the judgment will therefore he reversed. Reversed.