Opinion
March, 1906.
Louis A. Jaffer (Bernard Edelhertz, of counsel), for appellant.
Carl Schurz Petrasch (Henry S. Mansfield, of counsel), for respondent.
In this action to recover a broker's commission upon the sale of real estate, the complaint was dismissed upon two grounds, viz.: That the plaintiff had failed to show written authority to offer the property for sale, and that he had not produced a purchaser ready, willing and able to comply with the terms demanded by defendant. It appears that plaintiff had approached defendant, saying that he had a possible purchaser and asking the terms on which the property would be sold. He was given a price and set about seeking a purchaser. He went back and forth between the parties, and the defendant finally gave as the lowest acceptable price the sum of $55,500. Up to this time, no writing had passed between the parties; but, on July 27, 1904, defendant wrote to plaintiff as follows: "In reference to conversation had with you in regard to the purchase of the property 50 and 52 East 131st St. if you concede a few points which we did not then allude to there may be a chance to close the deal so if you will call at my place between 6 7 o'clock tomorrow evening will be pleased to hear of your best terms." The plaintiff did call and a conversation ensued in which defendant said that he would not sell for less than $55,500 net, and that, if he could get that price, he would sell the houses. Plaintiff agreed to see what he could do and then asked about his commission. Defendant then told plaintiff to "try to see your party" and that, if he could get one per cent. above the $55,500 he, the defendant, would pay the commission. The defendant then, at plaintiff's request, wrote down on a piece of paper the terms of the sale so far as concerns the manner in which payments were to be made. The statute relied upon as a defense to plaintiff's claim does not require that authority to sell should be in any specified form. All that is necessary is that it should, in some way, clearly recognize the authority of the broker to offer the property for sale. It is true that the letter above quoted does not, in terms, describe plaintiff as a broker, but, on the contrary, seems rather to address him as a possible purchaser. It does, however, clearly show that the defendant knew that plaintiff was interesting himself in some capacity in bringing about a sale of the houses, and distinctly invites him to call and discuss terms. The letter, certainly, must be accepted as an authorization to plaintiff to continue to act with reference to the property with a view to a sale of it. That the defendant knew that plaintiff was acting as a broker, and not as a prospective purchaser, is made entirely clear by the conversation testified to by plaintiff and which, on the present record, stands uncontradicted. Assuming, as we must do on this appeal, that the plaintiff's testimony is true, we cannot say that the letter of July twenty-seventh was not a written authorization to plaintiff to continue negotiations for a sale which he had, with defendant's knowledge, already undertaken. The positive evidence was that plaintiff did procure a purchaser ready, willing and able to purchase the houses on defendant's terms and that he communicated that fact, with the name of the proposed purchaser, to defendant. That he did not actually bring the purchaser into the physical presence of the defendant is unimportant, for the defendant's positive and unequivocal refusal to go on with the sale at any terms rendered it unnecessary to go through the idle ceremony of actually bringing the purchaser in person to defendant, even if, under any circumstances, that would be necessary. Upon a nonsuit, the plaintiff is entitled to the benefit of the most favorable view of the testimony and, giving him that, we are constrained to reverse the judgment and order a new trial, with costs to the appellant to abide the event.
NEWBURGER, J., concurs.
O'GORMAN, J., dissents.
Judgment reversed and new trial ordered, with costs to appellant to abide event.