Bryce v. Wilde

Kane, J.

These are cross appeals from an order of the Supreme Court, entered in Rensselaer County, upon a decision of the court at Trial Term and from the judgment entered thereon.

Plaintiff Bryce, a real estate broker, entered into an oral agreement with defendants Wilde to sell their 15-unit apartment house in the City of Troy. The broker accepted the listing as nonexclusive and fixed the sale price at $160,000 in view of the fact that the owners wanted to net not less than $150,000 and he wanted at least a 6% commission. The broker proceeded to contact prospective buyers by printed fliers and newspaper advertisements and the property was shown to several prospects by the broker.

It is disputed as to who initially contacted defendant Karl but, in any event, there came a time when Karl offered $155,000 for the property. Bryce conveyed this offer to the sellers who rejected it. Subsequently, after the property had been removed from the market for a short time, Bryce contacted Karl who then offered $151,000 which was rejected by Bryce without consulting the owners. A short time thereafter Bryce obtained an offer of $160,000 from a prospective purchaser but when he informed the owners, he was told that the property had been sold to defendant Bloom. The property was sold to Bloom for $150,000. The contract of sale to Bloom was executed and within a few days thereafter he assigned the contract to defendant Karl without consideration.

Bryce commenced an action against the Wildes, Bloom and Karl for breach of contract and for tortious interference with contractual relations. After a trial by jury, the trial court dismissed the action against the Wildes, finding that the evidence did not show knowledge of the Wildes that defendants Karl and Bloom were unlawfully interfering with the contractual rights of the plaintiff.

The jury returned a unanimous verdict of $9,000 compensatory damages against Karl and $1,000 punitive damages severally against Karl and Bloom. The verdicts as to punitive damages were set aside by the court.

In order to recover for tortious interference of contract, there must exist a valid contract between a plaintiff and another; defendant’s knowledge of that contract; defendant’s intentional interference or intentional procuring of a breach of that contract without justification; and damages (Israel v. Wood Dolson Co., 1 N Y 2d 116; Keviczky v. Lorber, 290 N. Y. 297). Additionally, courts have required more than a showing of qualified probability that the contract would have been completed but for the tortious interference. Plaintiff must show that but for the unlawful actions of the defendant he would have received the contract (Williams & Co. v. Tuttle & Co., 6 A D 2d 302, 306).

The jury obviously accepted the plaintiff’s version that Karl learned of the property through the efforts of the broker and that Karl would have met the price that the owners were asking with the commission, or that Bryce could have obtained the price of $160,000 from another purchaser had Karl not used Bloom as a dummy to avoid paying Bryce his commission. The only element of the cause of action not readily apparent is that Bryce would have otherwise received the contract, but there is sufficient evidence in the record to support the jury finding that had Karl not successfully circumvented the broker, he would have met the price of $160,000 (Hornstein v. Podwitz, 254 N. Y. 443; Pilger v. Ramati, 37 A D 2d 581).

Punitive damages are not recoverable alone although they may be based upon an award of nominal compensatory damages and there must be actual malice shown on the part of a defendant (14 N. Y. Jur., Damages, §§ 177, 178). It was therefore proper to set aside the verdicts awarding punitive damages.

The order and judgment should be affirmed, with costs to appellant-respondent.