Emerson v. Roof , 66 How. Pr. 125 ( 1883 )

Larremore, J.

— The premises were in Morgan’s hands for sale for some years before the defendant acquired any interest therein. It was not until the spring of 1883 that Morgan, upon the application of a purchaser, sought out the defendant and opened a correspondence with him upon the subject. This correspondence and the interviews between the parties finally resulted in the execution of the contract upon which this suit is brought. It might be said, in view of the evidence, that Morgan was as much the agent of one party as the other in effecting the sale. He was not expressly employed by the defendant. He met the inquiry of a purchaser by finding the owner of the premises and bringing them together. They made a contract, and his mission was ended. But conceding, as was insisted upon the trial, that he represented the defendant, his agency at the most was special in character, and the plaintiff in dealing with him was chargeable with notice of his special authority. He had no authority from the defendant to issue a diagram showing the dimensions of the property. This was an act for which his alleged principal cannot be held responsible.,, But whatever representations may have been made, and evep though the plaintiff was mistaken as to the dimensions of the property he purchased, yet in the absence of fraud or mutual mistake the contract of April 20, 1883, must control my decision. Before it was executed the plaintiff’s agent, who was a lawyer by profession, requested that the dimensions should be inserted therein, to which the defendant replied that he did not know what the dimensions were except in a general way, and that he would sell “as 34 Broadway and 69 New street.” Nothing was then said about a diagram. In this he is corroborated by the testimony of the attorney who drew the contract, while the testimony of the plaintiff and his attorney upon that point is purely negative in character. They do not recollect any such conversation.

Assuming, therefore, as the evidence warrants, that the plaintiff was bound by the contract, the question arises, is it still in force? Time was not originally of its e?sence, noi has it become so by subsequent notice (Myers agt. De Mier, 4 Daly, 343; affd, 52 N. Y., 647). The plaintiff is still entitled to perform it according to its terms. It does not appear that the property has depreciated in value or that the defendant has sustained any loss by reason of its non-performance. He has received $2,500, for which he has given no equivalent. It would be inequitable for him to retain it unless the plaintiff absolutely and unconditionally refuses to perform.

No right of action arises for the commissions paid by the plaintiff. The $1,275 were received by Morgan as a condition precedent of the execution of the contract. The $1,380 were paid in advance before the plaintiff had any legal right to sell the property to Morris.

Under all the circumstances, I think the plaintiff should have another opportunity to save his $2,500, and if within twenty days after service of a copy of the judgment to be entered herein, he- shall tender performance of the contract, the same shall be performed according to its terms, subject to adjustment for interest and moneys expended properly chargeable upon the property, which, if not agreed upon, may be settled by a reference for that purpose. If the plaintiff fails to perform as above stated, then judgment is ordered for the defendant.