Brabazon Agency, Inc. v. Donohue

87 A.D.2d 695, 448 N.Y.S.2d 863, 1982 N.Y. App. Div. LEXIS 16032

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1982
• Status: Published

Opinions

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered September 18, 1980 in Greene County, upon a decision of the court at Trial Term (Kahn, J.), without a jury. Plaintiff Brabazon Agency, Inc., a real estate agency, seeks in this action to recover a broker’s commission in the amount of $3,888 and also exemplary damages of $2,000 from defendant John Donohue, the purchaser of a parcel of real property .known as the “Gomiller Farm” in the Town of Middlefield, Otsego County. Following a nonjury trial, the court found that defendant had entered into an agreement with plaintiff whereby defendant, as purchaser of the subject property, agreed to pay the broker’s commission. The court also concluded that even if there was no enforceable contract, plaintiff was entitled to recover on the theory of quantum meruit. The cause of action for punitive damages was dismissed. This appeal by defendant ensued. We are of the view that the evidence presented at trial is insufficient to support the court’s finding that defendant had entered into an agreement with plaintiff to pay the broker’s commission and, therefore, the judgment should be reversed. Concededly, defendant did not expressly agree to pay the commission. It is' most significant that when the purchase offer signed by defendant was filled out by plaintiff, plaintiff crossed out the word “seller” in the phrase “seller agrees to pay * * * brokerage commission”, but did not substitute the words “purchaser” or “buyer”. Furthermore, the customary practice in the area was that the seller would pay the broker’s commission and certainly plaintiff, a broker, was well aware of the custom. In spite of this, plaintiff failed to obtain an express agreement manifesting a deviation from the normal practice. It is well established that in a nonjury case it is within the power of this court to grant the judgment which upon the evidence should have been granted by the trial court, and where a finding different from that of the trial court is not unreasonable, this court must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from such testimony (Lee v Slovak, 81 AD2d 98,100, app dsmd 54 NY2d 831). In our opinion, the trial court improperly found that defendant had agreed to pay the commission. Concerning the alternate theory of recovery based on quantum meruit, we find that the record does not support a determination that the services were rendered under circumstances which implied an agreement on the part of defendant to pay therefor, and thus conclude that recovery may not be had under this theory (McKeon v Van Slyck, 223 NY 392, 399). Accordingly, the judgment must be reversed. Judgment reversed, on the law and the facts, and complaint dismissed, without costs. Mahoney, P. J., Sweeney and Kane, JJ., concur.