Summary
In Peace v. Ross, 123 A.D. 611, the court said: "The plaintiffs were not entitled to recover without proof that the parties to the proposed sale reached an agreement not only as to price, but as to the terms of payment, the time of taking title, and all the details incident to such sale."
Summary of this case from Davis v. GottschalkOpinion
January 10, 1908.
A. Berton Reed, for the appellant.
Whitmel H. Smith, for the respondents.
The plaintiffs have recovered a judgment in this action, representing broker's commissions, arising from the alleged sale of real property owned by the defendant. The record discloses the following facts, upon which the judgment rests: The defendant owned premises known as No. 540 Carleton avenue, Brooklyn. The plaintiffs are real estate brokers, having in their employ a man whose special business it is to solicit for his employers the placing of real estate in their hands for sale and renting. This employee called upon the defendant and inquired if her house was for sale; he testifies that he did not think she was particularly anxious to put her place on the market, but that she finally said she would sell it for $10,000, and the witness says: "I took out and made my memorandum in the usual course and reported it to the office." A short time afterward a Mrs. Thier called at plaintiffs' office in search of a residence property, and one of their employees called the defendant on the telephone and procured her consent to Mrs. Thier's inspection of the property; she went to the house and the defendant conducted her through the house and told her that its price was $10,000, but that she would have to confer with her husband before she sold it. Mrs. Thier asked if she might bring her husband to look at the property the next day, and the defendant consented. Upon her second visit Mrs. Thier stated to the defendant that she was pleased with the property and would pay $10,000 for it, and defendant again informed her that she would have to confer with her husband before selling; "she couldn't sell it without consulting her husband;" that she would require a week in which to talk the matter over with him, and it was agreed that she should then let Mrs. Thier know her conclusion. About a week afterward the defendant wrote Mrs. Thier that her husband would not consent to the sale. This evidence did not establish a cause of action in favor of the plaintiffs, nor warrant the rendition of a judgment in their favor. Plaintiffs failed to establish a contract of employment by defendant, or any agreement, express or implied, to compensate them for their services. No ratification of plaintiffs' acts in attempting to sell, sufficient to obligate the defendant, can be predicated upon her assent to plaintiffs' request that Mrs. Thier be permitted to inspect the property; and again, no sale was made by the plaintiffs; no agreement was reached by the defendant and Mrs. Thier except as to the price that should be paid if the property was sold; the prospective purchaser was informed on her first visit that the defendant would not sell unless her husband consented, and nothing further was done. The plaintiffs were not entitled to recover without proof that the parties to the proposed sale reached an agreement, not only as to the price but as to the terms of payment, the time of taking title, and all the details incident to such sale. The rule established by the Court of Appeals in Sibbald v. Bethlehem Iron Co. ( 83 N.Y. 378), that "the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commissions does not accrue," cannot be questioned.
This branch of the case presents substantially the same facts that were before this court in Haase v. Schneider ( 112 App. Div. 336). The rule there enunciated controls the disposition of the case at bar, and the judgment must be reversed and a new trial ordered, costs to abide the event.
WOODWARD, JENKS and GAYNOR, JJ., concurred; MILLER, J., concurred on the ground that the plaintiffs failed to prove any contract of employment, either express or implied.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.