Shipman v. Frech

1 N.Y.S. 67, 1888 N.Y. Misc. LEXIS 1187

• Court: City of New York Municipal Court
• Decided: May 28, 1888
• Status: Published

Opinion

Pitshke, J.

This was not a case of a claim by plaintiff against the defendant, but a case of two “claims,” one by plaintiff and one by defendant,' against the same fund, brought into court on an interpleader application herein. The plaintiff seems to have first found and mentioned S. J. Doying as a desiring applicant for the premises on sale; and if plaintiff directed the buyer to the property, and that led to negotiations, and thereby the minds of the seller and proposed buyer were induced to meet on the subject, resulting in a “sale,” plaintiff was the.“procuring cause” of the transaction, and entitled to the commissions. Smith v. McGovern, 65 N. Y. 575, and cases cited. The guaranty was not deemed essential, but is taken along with the bargain as thrown in; and hence, Shipman was plainly the “first on the field,” and inferably the “procuring cause” of the sale as had. Scott informed Shipman that, having seen Sterne, he accepted Doying as purchaser, and between Scott, Shipman, and Doying the contract signing was agreed on before April 13, 1886. On the other hand, the loan was not mentioned by Scott to defendant, Freeh, and the latter did not commence conversing about any loan till near the end of April; whereas Shipman offered the lots with a loan as early as April 9th. And indeed, prior to Freeh’s ever seeing the owner of the property, Shipman saw the proposed purchaser; and it wras the latter that really informed Freeh that plaintiff Shipman had already been there and offered these lots, with a loan. Therefore, the negotiations being thus begun and consummated to a meeting of the minds of Scott and Doying, without Freeh’s agency, the latter’s mere contributing by talk, etc., towards the consummation, gave Freeh no right to commissions upon the sale finally effected. Briggs v. Rowe, 1 Abb. Dec. 189. The verdict of the jury that way against Freeh, was, hence, upon good foundation, and should not be disturbed. The issue—who acted as the “broker” in negotiating with and procuring the eventual purchaser—was a disputed question of fact for the jury. Thornal v. Pitt, 58 N. Y. 683. It is clear, also, that the owner put the property into Shipman’s hands for sale, and that such owner never specially authorized Freeh to sell. That the owner, after “accepting” the purchaser, agreed later with the latter to make the price a higher figure, in consideration of a higher amount of loan accorded, and that such became the even trial shape of the contest between them, does not abridge the plaintiff’s right against the vendor to the commissions for finding that purchaser. Martin v. Silliman, 53 N. Y. 615.

The statement expressed at folio 63, (though not part of any res gestee,) was an admission and ratification or adoption by the principal (theseller) of Ship-man’s acts as an agency for such principal; and the plaintiff was entitled to have that testimony go before the jury; for the plaintiff had yet the same rights as regards testimony proper for the jury, as if the owner still remained the defendant, and no interpleader had been ordered. The plaintiff cannot losé any rights by the owner’s withdrawal from the suit. The admission was proper evidence, if the owner were still defendant. It was against the declarant’s interest, and so admissible. The decisions on res gestee are inapplicable, since, as above said, this was, at the trial, not a case of the plaintiff against this defendant, but one of several claimants contra a fund in court, both of them as agents for the same principal.' Though both agents through the same principal, they are strangers to one another, and their interpleader, herein, was improper.¹ See, Vosburgh v. Huntington, 15 Abb. Pr. 257, 258. Defendant is not a vendor or vendee, grantor or grantee, or assignor or assignee; nor did he contract with the plaintiff. They were strangers to each other, No transaction occurred between or for them together. The statement excluded at folio 92 was not one made in the presence of the agent referred to therein, and would not be binding on Shipman,—the absent agent concerned. It was the speaker’s statement (not under oath) about another (absent) person. That would not be evidence. Theremarks admitted at folio 63 were'against the speaker himself, and were therefore good evidence against him in plaintiff’s (Shipman’s) favor. There was a conflict of evidence; and the whole matter between plaintiff and defendant was a question of fact properly left to the jury, and its verdict thereon should not be disturbed. Defendants motion to direct a new trial was properly denied, and the order thereon, and the judgment on the verdict, must be affirmed with costs.

Neiirbas and McGown, JJ., concurred.

1 The general term of the New York court of common pleas held that the order of interpleader was properly made in this case. Shipman v. Scott, 12 Civil Proc. R. 109.