Braune v. Henrichs

151 N.Y.S. 575

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 4, 1915
• Status: Published

Opinion

GAVEGAN, J.

Plaintiff was employed by defendant to procure a purchaser for his saloon and restaurant. As a result of his efforts, defendant entered into a written contract of sale with a purchaser introduced by plaintiff. Upon the signing of the contract of sale, the purchaser delivered to defendant two checks for $100 each, and requested defendant to hold them for a few days, which defendant agreed to do. Subsequently the purchaser learned that an outstanding chattel mortgage had not been satisfied, and he then refused to complete the purchase. The checks referred to were deposited by defendant and returned and marked “Not sufficient funds.” Defendant thereupon elected to rescind the contract.

Since no fraud was claimed, and the plaintiff was not responsible for the owner’s failure to satisfy the chattel mortgage, I am of the opinion that the agreement of sale was binding and enforceable. The plaintiff’s right "to commissions cannot be defeated by the subsequent .acts of the parties. Kutyn v. Sandrovitz (Sup.) 133 N. Y. Supp. 359.

The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.