Lorillard v. . Silver , 3 Trans. App. 143 ( 1867 )

The disposition of the case will be controlled by the meaning of the expressions in the contract "in case I realize," and "that I may sell said land for." The referee held that the defendant was only liable in the event of his actually making a sale of the premises and receiving payment on such sale. The General Term, on the contrary, were of the opinion that if the defendant had an offer for the premises, from which he could have made the required amount, but which, for any reason, he did not accept, he thereupon became liable to the plaintiff for the sum of five hundred dollars. The language employed in the contract appears to be carefully selected, with a view of avoiding this latter conclusion.

To "realize," means to bring into actual possession. It is ordinarily used in contrast to hope, or anticipation. The defendant may hope or expect to sell his lot for six thousand dollars, but until he actually sells and receives the money, or its equivalent, he cannot be said to have "realized" either his hopes or his profits. In the present case he had an offer of $4,500, which he did not accept. He may have erred greatly in not accepting this offer. He may have lost the opportunity thereby to secure to himself an advance of a thousand dollars, and to the plaintiff, an advance of five hundred dollars. It cannot, however, be said that he has "sold the land" and "realized" over three thousand dollars. He still holds the land, and, as all parties admit, has received nothing upon its sale.

If the contract had used language importing an obligation to sell on his part, or to use diligence to effect a sale, or to exercise his judgment when an offer to sell should be made, a different question would in each event have been presented. The present contract, however, plants the defendant upon the naked ground of "selling the land," and "realizing" a specific amount. This state of things has never been reached.

The plaintiff's counsel claim that the defendant stood in the position of a trustee for the plaintiff to the extent of five hundred dollars, and so far bound to act for his exclusive benefit. No such intention is fairly to be derived from the terms of the contract. The defendant entered into the purchase as a speculation on his own account, and for his own benefit. The primary object of the purchase was to make money for himself. The plaintiff also entered into the speculation to the extent of receiving a portion of the proceeds when realized, as an addition to the purchase-money. The exclusive right to dispose of the property was left with the defendant, and it was a necessary result that he was justified in acting with reference to his own interest in accepting, or rejecting an offer for the property. I think it was in the contemplation of the parties that the defendant was to act upon this principle, and that if it should result, while so acting, that a certain rate of profit should be made, then the plaintiff's right should attach to the additional five hundred dollars. His rights were subordinate to, and dependent upon, the result of the defendant's disposition of the property.

The order of the General Term should be reversed, and the judgment upon the report of the referee be affirmed.

All concur except BOCKES and WRIGHT, JJ.

Judgment accordingly.