Donnell v. First Mortgage & Real Estate Co.

Appellate Terms of the Supreme Court of New York

Donnell v. First Mortgage & Real Estate Co.

153 N.Y.S. 218

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 13, 1915

StatusPublished

This text of 153 N.Y.S. 218 (Donnell v. First Mortgage & Real Estate Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Donnell v. First Mortgage & Real Estate Co., 153 N.Y.S. 218 (N.Y. Ct. App. 1915).

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Opinion

GUY, J.

In this action for the recovery of commissions upon the sale of real estate, the plaintiff claimed that the property, which was sold through his efforts for $7,000, was listed by the defendant at $6,-[219]*219500, and that the defendant agreed to pay him 10 per cent, of the list price and also one-half of any excess received over that figure, making his total commission $900, of which $400 remained unpaid.

The plaintiff testified to the agreement' as alleged and the performance of the contract on his part. That he had received $500 on account and demanded payment of the balance. That defendant’s president did not deny the balance was owing the plaintiff, but asked him to wait “until we get on our feet and we will pay you. We will settle up with you.” That the balance was not paid.

Defendant’s counsel on cross-examination of plaintiff put in evidence his receipt given to the defendant, for $500, “being commission on sale of” the property in question, and also defendant’s check given to plaintiff in payment of this sum.

The plaintiff then rested his case, and the defendant moved to dismiss •on the ground:

“That the receipt signed and the check paid is an accord and satisfaction in full payment of all commissions to be paid on sale.”

There was no ruling on this motion, and the defendant rested without putting in any evidence, and then moved for the direction of a verdict on the ground that the commission had been paid, which motion was granted by the court.

[1, 2] The direction of a verdict is error fatal to the judgment. There was no question of accord and satisfaction in the case, because the plaintiff’s claim was for a liquidated amount, and there was no evidence of any dispute between the parties as to the sum which should be paid, or that the $500 was a receipt in full discharge of the demand Ryan v. Ward, 48 N. Y. 204, 8 Am. Rep. 539; Fuller v. Kemp, 133 N. Y. 231, 33 N. E. 1034, 20 L. R. A. 785; Komp v. Raymond, 175 N. Y. 102, 67 N. E. 113. The receipt did not contradict the plaintiff’s testimony as to the agreed compensation for his services, that he had made demand for the balance, that the defendant promised to pay it, but had breached its contract.

Judgment reversed, and new trial ordered, with costs to appellant .to abide the event. All concur.

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GUY, J.

In this action for the recovery of commissions upon the sale of real estate, the plaintiff claimed that the property, which was sold through his efforts for $7,000, was listed by the defendant at $6,-[219]*219500, and that the defendant agreed to pay him 10 per cent, of the list price and also one-half of any excess received over that figure, making his total commission $900, of which $400 remained unpaid.

The plaintiff testified to the agreement' as alleged and the performance of the contract on his part. That he had received $500 on account and demanded payment of the balance. That defendant’s president did not deny the balance was owing the plaintiff, but asked him to wait “until we get on our feet and we will pay you. We will settle up with you.” That the balance was not paid.

Defendant’s counsel on cross-examination of plaintiff put in evidence his receipt given to the defendant, for $500, “being commission on sale of” the property in question, and also defendant’s check given to plaintiff in payment of this sum.

The plaintiff then rested his case, and the defendant moved to dismiss •on the ground:

“That the receipt signed and the check paid is an accord and satisfaction in full payment of all commissions to be paid on sale.”

There was no ruling on this motion, and the defendant rested without putting in any evidence, and then moved for the direction of a verdict on the ground that the commission had been paid, which motion was granted by the court.

[1, 2] The direction of a verdict is error fatal to the judgment. There was no question of accord and satisfaction in the case, because the plaintiff’s claim was for a liquidated amount, and there was no evidence of any dispute between the parties as to the sum which should be paid, or that the $500 was a receipt in full discharge of the demand Ryan v. Ward, 48 N. Y. 204, 8 Am. Rep. 539; Fuller v. Kemp, 133 N. Y. 231, 33 N. E. 1034, 20 L. R. A. 785; Komp v. Raymond, 175 N. Y. 102, 67 N. E. 113. The receipt did not contradict the plaintiff’s testimony as to the agreed compensation for his services, that he had made demand for the balance, that the defendant promised to pay it, but had breached its contract.

Judgment reversed, and new trial ordered, with costs to appellant .to abide the event. All concur.

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153 N.Y.S. 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donnell-v-first-mortgage-real-estate-co-nyappterm-1915.

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