Emberson v. Dean

46 How. Pr. 236

• Court: New York Supreme Court
• Decided: May 15, 1872
• Status: Published

Opinion

Brady, J.

The plaintiff’s claim rested upon the alleged understanding that if Mr. Roberts purchased the defendant’s property he was to be paid a commission. He was to be protected against Roberts, because the latter was unfriendly to him, as he believed, and would not buy from him or through his agency. The plaintiff, having made this contract with the defendant, entered upon the discharge of his office, advertised the property, spoke to Roberts about it, advising him to buy, and to others as well. The agreement was not an unreasonable one on the part of the plaintiff. If he believed that Roberts would buy, but not from or through him, it would have been a waste of time and money to have taken any steps to sell and to have advertised the property for sale, and hence it was natural that he should have protected himself against such a contingency. It may be said that the defendant acted unwisely in making such a contract, or that it was unusual and extraordinary. All that may be conceded, and yet the contract may be established and sustained. If it were not for the infinite and still-continuing varieties of contracts, agreements and understandings, in which a palpable departure from the ordinary mode of dealing with the particular subject involved is shown, the courts would have less to do, and the volumes of reports be numerically less formidable. The defendant had the benefit of all that his denial of the plaintiff’s statement entitled him to. The jury were told that in cases where a conflict of evidence marked the trial, they might consider the inherent probability of the claim advanced, and the statement on which it was based. ' In deliberating upon the case, they determined that the plaintiff’s story was true, and that he was employed to sell upon the understanding that if Hr. Roberts became the purchaser he should be paid his commission. It cannot be said that the testimony is so clearly in favor of the defendant as to justify the impression that the jury acted from bias, partiality or corruption. There was a conflict of evidence, and a finding either way might have been made without doing violence to any rule of law applicable to trials by jury. It has often happened that courts have been dissatisfied with verdicts rendered, but that does not, in my judgment, militate against the system. I have great confidence in the trial by jury, although I do not believe it to be a perfect mode of disposing of disputes. I am not aware of any plan which is.

I think a new trial cannot be granted.