Hotchkiss v. Kuchler

Full title: PHILO P. HOTCHKISS, Appellant, v . FRANK X. KUCHLER, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 1, 1903

86 App. Div. 265 (N.Y. App. Div. 1903)

83 N.Y.S. 710

Opinion

July Term, 1903.

Charles J. Ryan, for the appellant.

Joseph H. Breaznell, for the respondent.

WILLARD BARTLETT, J.:

This is an action to recover $200 as broker's commissions in procuring a loan for the defendant upon certain factory property in the borough of Brooklyn. The plaintiff claims to have found a party, the Title Guarantee and Trust Company, able and willing to make the loan upon the terms desired by the defendant, and although the loan was not effected, its non-acceptance appears to have been entirely due to the defendant's own act.

In expressing its willingness to make the loan, the Title Guarantee Company stated that the application therefor was approved "provided the rules of this company are complied with and the loan is accepted within ten days from the date of this notice." The defendant now argues in support of the judgment in his favor that this acceptance by the Title Guarantee and Trust Company, upon condition that its rules should be complied with, introduced a new element into the transaction, and that the procurement of the loan on this condition was not a fulfillment by the plaintiff of his contract of employment. It is to be observed, however, that the defendant based his refusal to pay the plaintiff, not upon the ground that the terms upon which the Title Guarantee and Trust Company proposed to make the loan were unsatisfactory, but upon the ground that the plaintiff had undertaken to charge three per cent for his services. This the defendant declared to be too much, though he avowed his willingness to pay one per cent. Under these circumstances the defendant cannot justify his refusal to accept the loan upon the ground that the terms of the loaner's acceptance were unsatisfactory. ( Mooney v. Elder, 56 N.Y. 238.)

The plaintiff may not have been entitled to recover three per cent, but he was entitled to the fair and reasonable value of his services, as the proof showed that he had procured a party able and willing to make the loan on terms satisfactory to the defendant. ( Chambers v. Peters, 30 Misc. Rep. 756.)

The judgment should be reversed and new trial ordered, costs to abide the event.

WOODWARD, HIRSCHBERG, JENKS and HOOKER, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.