Gerding v. Haskin

Full title: BENJAMIN F. GERDING, Respondent, v . JOHN B. HASKIN et al., Appellants

Court: Court of Appeals of the State of New York

Date published: Mar 13, 1894

36 N.E. 601 (N.Y. 1894)

36 N.E. 601

57 N.Y. St. Rptr. 716

Opinion

Argued March 5, 1894

Decided March 13, 1894

Isaac H. Maynard for appellants. Abel Crook for appellants. C. Bainbridge Smith for respondent.

EARL, J.

Before a real estate broker can recover his compensation, he is bound to prove that he found a purchaser and produced him to his principal, ready and willing to purchase the real estate upon his terms. (Rapalje on Real Estate Bro. § 72; Coleman v. Garrigues, 18 Barb. 60; Mortin v. Bliss, 57 Hun, 159; Wylie v. Marine Bank, 61 N.Y. 416.)

It is contended on behalf of the defendants, that the plaintiff utterly failed to show that he produced any purchaser to the defendants, ready and willing to enter into contract with them. They were entitled to know who the proposed purchasers were, and with whom they were expected to enter into contract; and so long as there was uncertainty as to the purchasers, the plaintiff could not claim performance of his contract and demand his compensation.

Now, from the evidence furnished by the plaintiff, who can we say were the purchasers? It is impossible to say from his evidence. Although he furnished certain names to Haskin as the purchasers, yet when he came to furnish his bill of particulars he omitted one of those names and inserted another. The names of the members of the purchasing syndicate as given by Lewis differed materially from those given by the plaintiff to Haskin at the time of the interview with him; and Lewis testified that the syndicate was not full; and, therefore, the persons who were to make the purchase were not then known. He was then forming a syndicate for the purchase of the property, and he got a portion of the persons he named together in his office, and each one of them consented to subscribe for one share. But it does not appear what proportion of the property or of the purchase price constituted one share. The whole matter seems to have been incomplete, nebulous and uncertain. Neither the plaintiff nor Lewis knew who the purchasers were really to be, and they did not produce them to Haskin or name to him who they were. Before the syndicate of purchasers was fully formed the defendants sold the real estate to another person, and that ended their relations with the plaintiff. ( Sussdorff v. Schmidt, 55 N.Y. 319; Wylie v. Marine Natl. Bank, 61 id. 415; Sibbald v. Bethlehem Iron Co., 83 id. 378.)

Therefore, without examining other objections made to the plaintiff's recovery, we think he utterly failed to show that he had performed his contract, and hence he should have been nonsuited at the trial.

It is now claimed, however, that the motions for a dismissal of the complaint and for the direction of a verdict were ineffectual, and are not now available to the defendants because no grounds for the motions were stated. A motion to direct a verdict for the defendant is in substance a motion for a nonsuit, and must be governed by the same rules. ( Bissel v. Campbell, 54 N.Y. 353.) It is undoubtedly the general rule that a motion for a nonsuit is ineffectual unless the grounds upon which it is based are specified. The defect in the plaintiff's case should be pointed out, so that he may supply it, if he can. ( Booth v. Bunce, 31 N.Y. 246; Binsse v. Wood, 37 id. 526; Thayer v. Marsh, 75 id. 340; Sterrett v. Third Natl. Bank of Buffalo, 122 id. 659; Quinlan v. Welch, 141 id. 458.) So much is required by good faith and fair practice, and so much is due to the orderly administration of justice. But where no grounds are specified for a nonsuit, the motion is sufficient if it be apparent that the objection made to the plaintiff's recovery could not have been obviated if it had been particularly specified. To such a case the rule does not apply, as the plaintiff suffers no harm and is not misled because the grounds were not particularly brought to his attention or to the attention of the court. In a case like this, we think, the motion to nonsuit without specifying grounds should be held effectual. The plaintiff was a witness on his own behalf, and we must assume that he gave all the evidence he could. He assumed to state the whole transaction between himself and Haskin, and we cannot assume that if the ground for a nonsuit now relied upon had been stated he could have changed his evidence. Lewis seems to have been the principal mover in forming the syndicate of purchasers, and he testified fully about that matter, and about the interview which took place with Haskin. He said that the syndicate was not complete; that really all the purchasers were not known and could not be known at the time of the only interview had with Haskin. It cannot be assumed that his evidence could have been fuller, more certain or more favorable to the plaintiff. We cannot, therefore, see how the plaintiff could honestly, fairly or truthfully have made any better case for a recovery if his attention had been called to the ground for a nonsuit now relied upon.

Therefore, as the plaintiff wholly failed to show performance of the contract on his part within the rules of law applicable to such a case, he should have been nonsuited; and the judgment must, therefore, be reversed, and a new trial granted, costs to abide event.

All concur.

Judgment reversed.