Glentworth v. Luther

21 Barb. 145, 1855 N.Y. App. Div. LEXIS 123

• Court: New York Supreme Court
• Decided: November 5, 1855
• Status: Published

Opinion

By the Court, Cowles, J.

There can be no doubt as to the extent of the duties to be performed by one who, as broker, is employed to sell real estate. In the nature of things he can do nothing more than find a party who will be acceptable to the owner and enter into a contract of purchase with him; unless the owner makes him more than a broker merely, by giving him a power of attorney to convey the property, and then the employee would cease to be merely broker, and become the attorney. If stich is the extent of the broker’s duties, then the testimony of the two Bleeckers, in stating the time when by custom, either in their own cases or generally, the broker becomes entitled to his commissions, was supererogatory; for the law fixes the time as of the date when the broker produces to his principal a party with whom the owner is satisfied, and who contracts for the purchase at a price acceptable to the owner.

[New York General Term, November 5, 1855.

That the commission is due to the broker at that time is manifest from the fact, that when this is done the broker has exhausted his power to act. He can do no more, unless he is clothed with a power of attorney to convey the property and receive the purchase money. And having thus done all that it is possible for him to do, he has certainly done all that he can be held to have contracted to do. The plaintiff had therefore earned his commission as soon as the defendant and Mootry signed the contract, If, after that, Mootry refused to perform because the defendant had made unfounded representations as to the house and the character of the partition walls, it was no fault of the plaintiff^, and will not excuse the defendant from paying him the regular commissions.

The defendant objects that the proof shows that the plaintiff did not negotiate the sale; that this was done by the defendant himself. This I might incline to believe was correct, except for the defendant’s admission at fol. 19 of the case, to the effect that the plaintiff negotiated the sale to Mootry, which admission is conclusive.

The examination of Mootry, after the defendant had rested, does not seem from the case to have been irregular. There was no stipulation that Mootry should not be recalled; nor does the case show that the defendant could have been in any way taken by surprise. The stipulation to strike out did not go to the extent of providing that none of the facts to which he had testified should he introduced as testimony, a.t all.

The report of the referee appears to be in all respects correct, and the judgment appealed from must be affirmed, with costs.

Mitchell, Clerke and Cowles, Justices.]