Opinion
July, 1897.
Samuel Fleischman, for appellant.
Ira G. Darrin, for respondent
The claim in suit was for the amount of agreed compensation alleged to be due to the plaintiff because of his successful efforts, as a real estate broker, in bringing about an exchange of the defendant's property, No. 1982 Bathgate avenue in this city, for certain lots owned by one Wittiger in the city of Yonkers, but there appears to have been no sufficient evidence that this broker was the procuring cause of the exchange and the judgment is, therefore, infirm and cannot be sustained.
The defendant owned three adjoining houses on Bathgate avenue, known by the street numbers 1982, 1984 and 1986, all similar in plan, the first named being occupied by her and her husband as their residence, and it was testified by the plaintiff that he had been employed to find a purchaser of these houses, but that 1982, the residence, was to be sold last.
He procured Wittiger as a party able and willing to purchase one house by giving the Yonkers lots, of a stated valuation, in exchange and by making an appropriate cash payment of the balance in favor of defendant to complete the purchase price. These negotiations were had with reference to No. 1986, but, when the parties met to execute the contract of sale, it transpired that Wittiger was unable to complete the matter, or else unwilling, and the transaction fell through with the result that No. 1986 was later sold to some other person.
Some four or five months after this, however, the defendant did exchange the house No. 1982 for these Yonkers lots, the title not being taken by Wittiger in his own name but by one Wetterer, who held a mortgage upon the lots, and while the plaintiff had made no move in this transaction, he laid claim to compensation, as broker, because Wittiger had been originally introduced by him to the defendant at a time when the three houses were in his hands for sale.
This, however, was not enough since, although it may be conceded that Wittiger would not have concluded the exchange for No. 1982 had his attention not been called originally to the three houses by the plaintiff, No. 1982 was not for sale at the time of the introduction, because of the fact that No. 1986 was then unsold and its sale was to precede the sale of No. 1982, according to the plaintiff's own testimony as to his instructions from the defendant.
As has been said the negotiations commenced with Wittiger through the plaintiff's instrumentality, with reference to No. 1986, came to nothing and no more was done by the plaintiff in the matter; thus it cannot be held that he procured the sale of the house No. 1982, when it finally came into the market, merely because Wittiger was interested in the purchase, for even if it be said that the broker's influence, endured until the date of the sale, that influence, when exerted, was not extended to this particular property in compliance with any request upon the defendant's part, or in the course of the broker's employment at that time.
Under these circumstances it seems obvious that the plaintiff was not the procuring cause of the sale in question under the rules applicable to this class of cases.
In support of his claim the plaintiff called Wetterer, the purchaser of record, as a witness, who testified that Wittiger had told him that the title was to be taken in his name in order that both parties to the transaction might defraud the broker of his commissions.
It appears that the plaintiff was understood to be acting for both sides in the matter of the attempted sale of No. 1986, but while this evidence of Wetterer's might have supported a finding of an admission upon Wittiger's part that the broker was entitled to commissions through the sale of No. 1982, it did not serve as evidence of this defendant's admission of the fact, and otherwise, as shown, the proof was insufficient to charge the latter.
The judgment is open to the further objection that there was no proof of damages, since while the action was for an alleged agreed compensation of $100 upon the sale of the house No. 1982, the plaintiff failed to testify to any such agreement, and the only evidence upon the subject (that of the defendant) was to the effect that this sum was promised solely with reference to Nos. 1984 and 1986.
There is also a serious question whether the plaintiff acted in good faith as the agent of the defendant in the course of his dealings with Wittiger. A letter, sent by him to the latter, was in evidence whereby it appeared that he was aware of Wittiger's over-valuation of his Yonkers lots and in which he stated that he would not inform the defendant of the facts.
This letter was not satisfactorily explained and may be taken as strongly affecting the right of recovery in this action.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
DALY, P.J., and McADAM, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.