Hogan v. O'Brien

Hardin, P. J.:

Plaintiff’s complaint contains no allegations of fraud or fraudulent practices on the part of the defendant. Nor does it aver any mistake of fact inducing the plaintiff to enter into the contract for the purchase of the lot mentioned in the complaint.

The gravamen of the complaint seems to rest upon the allegations of failure on the part of the defendant, as well as on the part of Warner & Bradley, to carry out the stipulations found in the supplemental contract executed by Warner & Bradley. There are no allegations in the complaint alleging a breach of the stipulations on the part of the defendant or the stipulations on the" part of Warner & Bradley, nor any demand for damages in .consequence thereof. The evidence indicates that the defendant was ready and. willing to carry out the stipulations found in the contract which he had executed personally with the plaintiff.

Upon reading the contract between O’Brien and Warner & Bradley it is seen that Warner & Bradley were authorized to negotiate sales of the property and to receive and enjoy the benefit of prices that might be realized above those enumerated in the stipulations entered into with O’Brien. It is, therefore, discoverable that they became interested in the project of making sales of the lots, and, therefore, to some extent, interested in the sale of the lot purchased • by the plaintiff. Such being the relation of the parties to that contract it is reasonable to suppose that Warner & Bradley personally became obligated to the plaintiff, in virtue of their memorandum, to put in the sewer and cement walks and substantial roadbed mentioned in the agreement made by them. Besides, Warner & Bradley had no right, under their contract with the defendant, to lay sidewalks, and had no direct authority from the defendant to make a contract binding him to lay sidewalks. Assuming the memorandum signed by them to be their personal contract it furnishes no basis for the plaintiff’s rescinding the contract which he entered into with O’Brien. Doubtless a breach of the stipulations found in the memorandum signed by "Warner & Bradley would furnish the foundation for an action to recover damages, but it is hardly necessary to determine on this occasion whether such an action should be brought against O’Brien or against Warner & Bradley.

It seems that the court fell into an error in refusing to charge “ that the effect of a verdict for the defendant would leave Mr. Hogan all his rights to the lot in question under his written contract with O’Brien.” ,

(2) The court also erred in ruling that the defendant “ could not ask for a direction of a verdict in defendant’s behalf, and that being denied then ask to go [to] the jury.” (Clark v. Clark, 91 Hun, 295; Shultes v. Sickles, 147 N. Y. 704; Switzer v. Norton, 3 App. Div. 175.) However, the defendant subsequently withdrew his consent to allow the court to direct a verdict, and made one request which was allowed to the effect that the defen dant might “ go to the jury upon the question of fact whether, under all the circumstances testified to, Warner & Bradley were held out by apparent authority to be the agents of O’Brien, and authorized to sign the contract of October 24th.”

In response to that request the court observed : “ I think that is a question of fact to be submitted to the jury.”

Perhaps if the court had not circumscribed the rights of the defendant, further questions might have been presented by him for the consideration of the jury.

We are of the opinion that the evidence does not warrant the verdict, and by reason thereof, as well as for the errors which we have pointed out, we think there should be a new trial.

All concurred.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.