Salvatore Scarpati & Son v. McNaughton

Appellate Terms of the Supreme Court of New York

Salvatore Scarpati & Son v. McNaughton

125 Misc. 824, 211 N.Y.S. 579, 1925 N.Y. Misc. LEXIS 974

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 29, 1925

StatusPublished

This text of 125 Misc. 824 (Salvatore Scarpati & Son v. McNaughton) 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

Salvatore Scarpati & Son v. McNaughton, 125 Misc. 824, 211 N.Y.S. 579, 1925 N.Y. Misc. LEXIS 974 (N.Y. Ct. App. 1925).

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Opinion

Per Curiam:

Judgment and order unanimously reversed upon the law and new trial granted, with thirty dollars costs to appellants to abide the event.

It was error for the court to charge that plaintiff was entitled to commission if it was employed to find a purchaser and found one who was ready and willing to buy upon defendants’ terms. So, likewise, it was error to refuse to charge the request made by defendants’ counsel that the purchaser had to be able, as well as ready and willing to buy. Respondent’s counsel concedes this to have been error. Moreover, there is nothing in the record to show that the buyer ever agreed to pay $8,750. There is proof that plaintiff’s salesman told one of the defendants that the buyer would pay that sum, but that was not proof of the fact that he was willing to pay it, or had ever agreed to do so. The court charged the jury that the plaintiff could not recover unless they found that the purchaser was willing to pay $8,750. Perhaps on a retrial the facts showing how the sale actually came to be made may be more fully presented.

Present: Cropsey, Lazansky and MacCrate, JJ.

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Per Curiam:

Judgment and order unanimously reversed upon the law and new trial granted, with thirty dollars costs to appellants to abide the event.

It was error for the court to charge that plaintiff was entitled to commission if it was employed to find a purchaser and found one who was ready and willing to buy upon defendants’ terms. So, likewise, it was error to refuse to charge the request made by defendants’ counsel that the purchaser had to be able, as well as ready and willing to buy. Respondent’s counsel concedes this to have been error. Moreover, there is nothing in the record to show that the buyer ever agreed to pay $8,750. There is proof that plaintiff’s salesman told one of the defendants that the buyer would pay that sum, but that was not proof of the fact that he was willing to pay it, or had ever agreed to do so. The court charged the jury that the plaintiff could not recover unless they found that the purchaser was willing to pay $8,750. Perhaps on a retrial the facts showing how the sale actually came to be made may be more fully presented.

Present: Cropsey, Lazansky and MacCrate, JJ.

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Bluebook (online)

125 Misc. 824, 211 N.Y.S. 579, 1925 N.Y. Misc. LEXIS 974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salvatore-scarpati-son-v-mcnaughton-nyappterm-1925.