Powers v. Rieser ( 1910 )

GIEGERICH, J.

The plaintiff, a real estate broker, brings this action to recover commissions claimed to have been earned by procuring a purchaser ready and willing to buy certain real property, belonging to the defendant, upon the terms proposed to the broker by the defendant. The answer was a denial of all the material allegations of the complaint. The jury found for the plaintiff, and the defendant appeals on the ground that the verdict was against the weight of evidence, and also upon exceptions taken to the charge of the trial judge and to his rulings upon the admission and exclusion of evidence.

It is undisputed that in the month of June, 1906, the defendant sent the plaintiff a description of the property in question, stating his price as $75,000, and further stating that there wás a first mortgage with about four years to run, and a second mortgage of $11,000 with about the same time to run. The plaintiff at that time was in business for himself as a real estate broker. He testified that he offered the property without success upon the terms proposed. Later in the year he entered the employment of Pease 8c Elliman, a firm of real estate brokers in this city; but he testified that under his contract with them they were to have no interest in any sale he might make of the property in question. The plaintiff further testified that about the 1st of October of the same year he offered the property to one Atterbury, who declined to purchase, but shortly afterwards made a counter offer of $70,000, which the plaintiff submitted to the defendant, who refused it. Negotiations were continued,, however, with the result that towards the end of the month the parties were brought to a mutual agreement upon the price of $72,500.

According to the plaintiff’s testimony, all these negotiations, including the final offer and its acceptance, were expressly based upon the terms and conditions mentioned in the defendant’s description furnished to the plaintiff in the month of June previous. When the final agreement was reached,, a time for the execution of the contract of purchase and sale was fixed, and the parties attended at the time and place so agreed upon. A contract, previously drawn in the office of Pease & Elliman, was produced by the plaintiff, in which the due dates of the mortgages were stated to be July 6, 1907, for the first mortgage, and December 28, 1908, for the second. Atterbury refused to sign this contract unless the defendant would guarantee an extension of the first mortgage for three years. This was refused, and the sale fell through.

The defendant’s version of the transaction was that, in the first place, his dealings in the fall of 1906 were with the firm of Pease 8c Elliman, and not with the plaintiff; and, secondly, that he had expressly based his reduction in the price of the property upon the condition that the purchaser take the property subject to the mortgages as they were, stating the dates of their maturity, and that it was upon those terms that the firm of brokers were finally authorized by him to close the transaction, and that they drew the contract from his dictation over the telephone in such a form as to carry out that intention.

The plaintiff’s explanation of the variance between the terms of the description upon which he claimed to have been acting and the terms of the contract as finally drawn, and as produced by him at the time fixed for the closing, was that he had ordered the contract to be typewritten in the office of Pease & Elliman in accordance with the terms upon which he had effected the sale, and that he was not aware of the variance in regard to the mortgages until he read the contract when it was about to be presented for signature. He testified without objection that he later learned that this change had been made by the clerk who drew the contract, in pursuance of a request by telephone from the defendant.

These very different versions of the whole case, each supported in some respects by the testimony of other witnesses, were very fully presented to the jury, who found for the plaintiff. I do not think that the record requires or would justify any disturbance of their verdict, or of the judgment founded upon it. The plaintiff testified in his own behalf, and was corroborated to a considerable extent by the testimony of two other witnesses, one of whom was the proposed purchaser, Atterbury, who was not interested in the result of the action. The defendant’s case rested upon his own testimony, corroborated in some respects by the testimony of his attorney. We cannot say that the result reached by the jury was contrary to or against the weight of the evidence thus given.

The court charged the jury that Mr. Atterbury was the only really disinterested witness, and the defendant’s counsel took the following exception:

“I respectfully except to that portion of your honor’s charge In which you stated that the only disinterested witness in this case is Mr. Atterbury, for the reason that the evidence shows that he is intimately related to Mr. Osterman in matters of business.”

Mr. Atterbury was clearly a disinterested witness. He had no interest whatever in the result of the action, and the fact that he had business relations with the witness Osterman, who had an interest in the outcome of the litigation, was not sufficient to make him an interested witness. But the appellant argues that, even if Atterbury was disinterested, he was not the only witness who was so, and that the charge of the court improperly discredited the testimony of the defendant’s attorney, who was a witness for the defendant. However this may be, the ground upon which the objection was made was altogether different, and if the charge required correction in this respect a request to that effect should have been iriade at the time. The point cannot be raised here for the first time. Bevins & Rogers, Appellate Term Practice, pp. 74, 79, and cases there cited.

We have examined the exceptions to the admission and exclusion of evidence, but do not find any error in the rulings of the court below, and the points so raised do not seem, to require discussion.

The judgment and order appealed from should be affirmed, with costs.

DAYTON, J., concurs.