Carpenter v. Atlas Improvement Co.

Appellate Division of the Supreme Court of New York

Carpenter v. Atlas Improvement Co.

123 A.D. 706, 108 N.Y.S. 547, 1908 N.Y. App. Div. LEXIS 167

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 24, 1908

StatusPublished

Cited by5 cases

This text of 123 A.D. 706 (Carpenter v. Atlas Improvement Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carpenter v. Atlas Improvement Co., 123 A.D. 706, 108 N.Y.S. 547, 1908 N.Y. App. Div. LEXIS 167 (N.Y. Ct. App. 1908).

Pincite

Opinion

Per Curiam :

The plaintiffs were employed to sell the' real estate owned by the defendant at' White Plains for • $70,000 at the usual' commissions. Ro modification was made of the contract of employment, nor was there any evidence from which this co,urt. could find that the com' tract was changed by implication. The plaintiffs were to sell the entire parcel, but were able to find purchasers for only two portions of the whole; after the lapse of a reasonable time, the defendant, independently of the plaintiffs, sold the • two portion's to the 'purchasers the plaintiffs had found; the balance had not been sold when this action was begun. The plaintiffs have had judgment for commissions on the two portions sold. We think the learned referee fell into error by holding that the contract of employment was changed by implication. The familiar principle of law that before the plaintiffs can recover on such a contract as this they must show performance of the entire contract is applicable to the facts pre[707]*707sented by the record here, and the judgment must be reversed for want of evidence to sustain it, and a new trial granted, costs to abide the event.

Woodward, Jerks, Hooker, G-aynor and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam :

The plaintiffs were employed to sell the' real estate owned by the defendant at' White Plains for • $70,000 at the usual' commissions. Ro modification was made of the contract of employment, nor was there any evidence from which this co,urt. could find that the com' tract was changed by implication. The plaintiffs were to sell the entire parcel, but were able to find purchasers for only two portions of the whole; after the lapse of a reasonable time, the defendant, independently of the plaintiffs, sold the • two portion's to the 'purchasers the plaintiffs had found; the balance had not been sold when this action was begun. The plaintiffs have had judgment for commissions on the two portions sold. We think the learned referee fell into error by holding that the contract of employment was changed by implication. The familiar principle of law that before the plaintiffs can recover on such a contract as this they must show performance of the entire contract is applicable to the facts pre[707]*707sented by the record here, and the judgment must be reversed for want of evidence to sustain it, and a new trial granted, costs to abide the event.

Woodward, Jerks, Hooker, G-aynor and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.

Cite This Page — Counsel Stack

Bluebook (online)

123 A.D. 706, 108 N.Y.S. 547, 1908 N.Y. App. Div. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carpenter-v-atlas-improvement-co-nyappdiv-1908.

Opinion

Related

Cite This Page — Counsel Stack