Wilson v. Ewald

61 Misc. 286, 113 N.Y.S. 687

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1908
• Status: Published

Opinion

Ford, J.

Plaintiff-appellant, who was a real estate broker, showed upon the trial that the testator of defendant-respondent placed in plaintiff’s hands for sale certain real estate for which he found a purchaser ready, able and willing to purchase at the price named by said testator, but that the latter proved not to he the owner, and did not even possess authority as agent to sell the property. Suit based upon the testator’s breach of warranty of authority to sell was commenced against him for damages incurred through loss of commission upon the proposed sale. Before the commencement of this suit, the plaintiff had commenced one for similar damages against the owners of the property based on their refusal to consummate the sale, during the course of which it appeared that defendant’s testator did not have authority to sell the property. That suit was discontinued upon payment of sixty-five dollars to the plaintiff and a release of the owners by the plaintiff. Then this action was commenced. At the close of plaintiff’s case, the complaint was dismissed upon the following ground as stated by the learned trial judge:

“ I hold that plaintiff is precluded from prosecuting this action by reason of the .settlement made by him in his Supreme Court action against Andrew Ewald and Katherine Ewald. Assuming the legality of that litigation, nevertheless it stands uncontradicted therein that that suit was instituted after plaintiff had full knowledge that defendant’s testator had never been authorized to make sale of the property in question. Having elected, therefore, to hold the alleged principals, and having effected settlement of suit instituted against them on that theory, plaintiff is now es-topped from charging the alleged agent. He had his right of election as to which he would hold responsible, and having made an election is bound thereby. The complaint is dismissed.”

In the former suit, plaintiff had merely sued the wrong parties and the payment by them of sixty-five dollars and the taking of a general release amounted to no more than a purchase of their peace. It is not a case in which the doctrine of election applies so as to bar the present suit. See Kinney v. Kiernan, 49 N. Y. 164; Henry v. Herrington, N. Y. L. J., Nov. 6, 1908.

While the complaint contains allegations of misrepresentations which were not proved on the trial, yet enough was shown to make a prima facie case of breach of the implied warranties as to the authority of defendant’s testator. White v. Madison, 26 N. Y. 117.

Giegerich and Hendrick, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.