Foley v. Punchard ( 1907 )

PER CURIAM.

The plaintiffs brought this action to recover brokers’ commissions for bringing about the sale of defendant’s property. They recovered a judgment for $212.21, from which the defendant has appealed.

There is really no question of law involved in the case. Although the court decided the question of fact in favor of the plaintiffs, we think that decision not warranted by the evidence. Most of the facts are admitted. Defendant denies the employment of the plaintiffs as his broker, and alleges that the sale was not brought about through the plaintiffs. The defendant first met the purchaser, Mr. Goldstein, on September 13, 1906, in defendant’s store. The plaintiff John R. Foley was with Goldstein. They came there together. It was the first time defendant had seen plaintiff, Foley, and he had no previous acquaintance or communication with him. Foley says that he introduced Gold-stein to defendant; but defendant denies this, and asserts that Foley said nothing until after the sale had been made. The plaintiff further testified that he then told defendant that Goldstein was the man he had who desired to buy the property. The plaintiff admits that prior to this introduction he had never spoken to the defendant regarding these premises. From plaintiff’s own testimony it appears that Gold-stein and the defendant did all the bargaining and arranged the terms of the sale, except that he says he intervened and induced the defendant to reduce the cash payment from $5,000 to $4,000. This, however, is denied by the defendant. Plaintiff further testified that he wrote the terms of sale on his business card, and gave one to defendant and one to Goldstein as they were parting. This card was put in evidence. It has the following words written upon its back:

“Jacob Goldstein, 19000, 4000 cash, 8000 5/ — 7000 5/ 5 years—60 days clause. 1.30.”

The court below considered that only a question of fact was presented for his decision. In his written opinion he says that the writing upon the card referred to above was really the determining factor in plaintiff’s favor. In view of the lack of evidence in other parts of the testimony to establish the relation of broker and pustomer, we think too much importance was attached to the writing upon the card. We think the evidence shows rather that the plaintiff was representing Goldstein, if anybody. The giving of the cards to defendant and-to Goldstein is perfectly consistent with that theory. Fowler et al. v. Hoschke, 53 App. Div. 327, 65 N. Y. Supp. 638.

We think this judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.