From Casetext: Smarter Legal Research

Timmons v. Shumaker

Appellate Division of the Supreme Court of New York, Second Department
Feb 25, 1952
279 App. Div. 879 (N.Y. App. Div. 1952)

Opinion

February 25, 1952.


In an action to recover a real estate broker's commission, it appears that the broker produced a buyer and that an oral agreement was reached between the buyer and the seller for the sale and purchase of real and personal property on stated terms; that the purchaser resided in New York City and that the subject property and the office of the seller's attorney were in Southampton, Suffolk County; that the parties agreed to appear at the office of the attorney for the seller for the purpose of signing a formal contract; that ten days after the oral agreement the seller's attorney mailed a draft of contract to the purchaser; that five days after its receipt the purchaser's attorney returned the draft with annotated criticisms and suggestions; that ten days thereafter the seller's attorney mailed a new draft of contract to the purchaser's attorney embodying all the proposed amendments; that the purchaser's attorney then informed the seller's attorney that the purchaser had lost interest because of the delay; that time was not a material term of the agreement; that at no time was any money paid on account of the purchase price; that at no time did the purchaser appear in Southampton for the purpose of signing a contract; that the broker's employment agreement provided that commission was due and payable when the property was sold; and that at no time did the seller refuse to enter into a written contract of purchase and sale. Judgment entered in favor of respondent, after trial by the court without a jury, reversed on the law and the facts, with costs, and judgment directed in favor of appellant, with costs. Informal findings reversed and new findings of essential facts are made. The proof clearly establishes that the sale failed of consummation because the purchaser changed his mind before a written contract was signed and not because the seller refused to proceed. Under these circumstances the broker has not earned the commission provided to be paid under the employment agreement. Adel, Wenzel and Schmidt, JJ., concur;


The seller promised to present a contract consonant with the terms upon which the parties had agreed. The first contract concededly was not consonant with such terms. The second contract was; but that contract was submitted after a lapse of thirty days. Implicit in the seller's promise to present a proper contract was the obligation to do so within a reasonable time. Upon adequate proof, the trial court has found as a fact that the delay of thirty days was unreasonable and that the seller obstructed and prevented the sale by her conduct and unreasonable delay. Consequently, the brokerage fee was earned. (See Boyd v. Boyd, 252 N.Y. 422.)


Summaries of

Timmons v. Shumaker

Appellate Division of the Supreme Court of New York, Second Department
Feb 25, 1952
279 App. Div. 879 (N.Y. App. Div. 1952)
Case details for

Timmons v. Shumaker

Case Details

Full title:EDWARD L. TIMMONS, Respondent, v. IRENE L. SHUMAKER, Appellant

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

Date published: Feb 25, 1952

Citations

279 App. Div. 879 (N.Y. App. Div. 1952)

Citing Cases

Broadstone Realty Corporation v. Evans

To put it in terms of the present case, Benenson was free at all times until the closing, for any reason or…