Crandall v. Phillips

13 A.D. 118, 43 N.Y.S. 299

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1897
• Status: Published

Opinion

Willard Bartlett, J.:

This is an action by a real estate broker to recover compensation for having procured a party who was ready and willing to make to the defendant a loan which he ■ desired upon, certain real property situated in the city of Brooklyn.

The defendant denies his liability upon the ground that he desired the loan at the rate of fiy.e per cent, while the only loan offered to him by the plaintiff, or at his instance, was at the rate of six per cent, which he never contemplated, and which he refused to accept.

The proof leaves no doubt that thé loan sought by the defendant was a loan at the rate of five per cent. The plaintiff endeavored to show, hy the testimony of Mr. Sidney Y. Lowell, that the defendant subsequently changed hisi mind and consented to pay a higher rate of interest. But in our opinion the evidence in the record before us does not justify this conclusion. Mr. Lowell nowhere states that the defendant ever offered to pay more than five per cent interest on the proposed loan. He does say in one place that, “ six per cent, was the' amount of interest he was to pay” but it is plain that this was merely his own- mental inference in view of his subsequent admission on cross-examination, that he told the plaintiff when he met him afterward that the defendant had refused the loan when the question of interest was broached, or, in other words, when the defendant ascertained that six per cent instead of five per cent was demanded.

It seems clear, to us, upon the whole proof, that, if there was any employment of the plaintiff by the defendant, it was an employment to procure a loan at five per cent; that there is no evidence sufficient to warrant a finding that the defendant ever agreed to pay a larger rate of interest; and that the plaintiff■ never procured, any one who was ready and willing to make the desired loan at less than six per cent.

It follows that the claim of the plaintiff must fail. To recover his brokerage he was bound to prove that he had found some one who would make the proposed loan at the rate which his principal had originally specified, or had subsequently expressed his willingness to pay. (Gerding v. Haskin, 141 N. Y. 514.) This he did not do. In our opinion, the verdict is, so. directly against the evidence on this point as to require us to set it aside and grant a new trial.

All concurred.

Judgment and order reversed and new trial granted, costs to abid& the event.