Charles H. Coppard, Inc. v. Chesbro

34 A.D.2d 879, 312 N.Y.S.2d 444, 1970 N.Y. App. Div. LEXIS 4866

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1970
• Status: Published

Opinion

Order insofar as it granted defendant’s motion for summary judgment unanimously reversed and motion denied and otherwise order affirmed, without costs. Memorandum: Defendant buyer entered into an agreement through the plaintiff broker to buy a house and agreed to pay the broker a commission if he failed to complete his part of the agreement. It provided that the sale was contingent upon the broker finding the sellers, “a home of our desire.” The sellers later notified the buyer that they were waiving the contingency. The buyer failed to complete the purchase. Special Term held that defendant was not liable for the commission since the sellers’ promise to sell was illusory. Summary judgment should not have been granted. There is a factual question as to whether the agreement, which may have been illusory, ripened into a valid one by performance of the contingency. (Baum v. Beacon Feeds, 31 A D 2d 734.) There is also the question of who hired the broker. If the buyer did, he would be liable if the contract became binding since the broker would have performed his obligation of finding a ready, willing and able seller. If the sellers hired the broker, there would be a further question of whether the buyer agreed to be liable for a commission if he failed to buy regardless of the reason or whether he only agreed to be liable if he failed to complete a binding contract. (Appeal from order of Monroe Special Term granting motion for summary judgment in action for commissions.) Present — Goldman, P. J., Marsh, Witmer, Moule and Bastow, JJ.