Opinion
Argued October 18, 1918
Decided October 29, 1918
Henry M. Dater, Jay S. Jones and Edward J. Fanning for appellant.
Leonard J. Reynolds and Richard A. Geis for respondent.
This is an action to recover for services rendered by a broker in procuring a purchaser for real property owned by the defendant. At the trial each party moved for the direction of a verdict. The defendant's motion was denied and the plaintiff's was granted. The Appellate Division reversed the trial court and dismissed the complaint. The trial court was justified in finding that George H. Ohnewald, plaintiff's secretary and treasurer, was employed by defendant in January, 1912, to sell certain real estate in the borough of Brooklyn, and that thereafter he found a purchaser ready, willing and able to perform upon satisfactory terms, and that on May 2, 1912, as the result of the services thus rendered by him, a contract of sale was entered into between the defendant and the purchaser. This contract contained the following clause: "The seller agrees that Mr. Ohnewald of Reis Co., brought about this sale and agrees to pay the broker's commission therefor and who shall be entitled to his commission upon passing of title as agreed."
Ohnewald assigned to plaintiff his right to the compensation to be paid under the contract. Title to the premises never passed.
The Appellate Division holds that as matter of law "the only evidence of an employment or agreement to pay commissions is furnished by the clause in the contract quoted above, which was introduced in evidence by the plaintiff under that clause. The defendant did not become obligated to pay a commission until the passing of title. It was shown that the title never passed, and consequently the plaintiff was not entitled to the commissions."
At the time the contract of sale was signed, Ohnewald had procured a purchaser and his right to his commissions had accrued. ( Gilder v. Davis, 137 N.Y. 504; Davidson v. Stocky, 202 N.Y. 423.) It is true that when the written contract was prepared for execution he expressed his willingness, if it would be more convenient for defendant, to wait for payment until title passed. But his contract with defendant had been fully executed by him, and the defendant could not be released from his liability to pay commissions without a consideration. ( Collyer Co. v. Moulton, 9 R.I. 90; Benedict v. Pincus, 134 App. Div. 555.) There was no evidence of any promise on the part of defendant to do what he was not already legally obligated to do. ( Kellogg v. Olmsted, 25 N.Y. 189.) Ohnewald's agreement to wait was, therefore, nudum pactum and unenforcible.
It follows that the judgment of the Appellate Division should be reversed and that of the Trial Term affirmed ( Larkin v. N.Y. Tel. Co., 220 N.Y. 27, 31), with costs in favor of the appellant in this court and in the Appellate Division.
HISCOCK, Ch. J., CHASE, HOGAN and CARDOZO, JJ., concur; MCLAUGHLIN, J., dissents; ANDREWS, J., absent.
Judgment reversed, etc.