Hess v. Eggers ( 1902 )

Conlan, J.

The action was originally commenced by Morris Hess, doing business under the firm name of M. & L. Hess. Morris Hess died October 12, 1901, and the original action was revived and continued in the names of the plaintiffs as administrators.

The action was brought for services as broker, in procuring a loan from the Metropolitan Life Insurance Company. The answer contained a general denial, and alleged as a separate defense that the plaintiff was not to receive compensation unless the loan was actually made. The understanding between the parties was in writing and to the following effect: Defendant agreed to_accept a loan on his property of $65,000 from the Metropolitan Life Insurance Company, and to pay the plaintiff 2 per cent. commission, to be deducted from the loan on the day of closing. The plaintiff notified defendant the following day that the company would make the loan, whereupon defendant made a formal application in writing, as required by the company, and placed his property with the attorneys for the company to examine the title. Subsequently the title was rejected by the attorneys making the search, and the company refused to make the loan.

It will be seen that the agreement between the parties was not the ordinary employment of a broker to procure a person able and willing to make the loan, on the terms prescribed by the owner, as in the Putzel case, 49 Hun, 221. Here the defendant did not employ the plaintiff to procure a loan, but agreed that he would accept a loan from the company and pay 2 per cent, to the broker, as a commission, from the proceeds of the loan. No loan was made, therefore the contingency upon which the plaintiff’s commission depended did not happen. This was not due to any refusal or inability on the part of the defendant. An attempt was made on the trial to show that defendant’s title was defective, but the evidence failed to establish the fact. The mere opinion of lawyers or the title guarantee companies is not enough to establish defective title. Gatling v. Central Spar Verein, 67 App. Div. 50.

We do not find any errors or rulings prejudicial to the plaintiff' committed on the trial. The case was fairly submitted to the jury and the verdict was a proper one and should stand.

Judgment and order appealed from affirmed, with costs.

Fitzsimons, Ch. J., and O’Dwyer, J., concur.

Judgment and order affirmed, with costs.