Sahoff Corp. v. William B. May Co. Real Estate, Inc.

Cohn, J.

The action was brought upon an alleged agreement made in September, 1935, between plaintiff and defendant, licensed real estate brokers, to divide equally all commissions received by either upon a sale of a parcel of real property in Árdsley, N. Y. Plaintiff had been retained as sole agent by the New York Trust Company, as trustee, to offer the real estate for sale. The prospective purchaser was a client of defendant. Negotiations for a sale of the property were conducted by the parties until December 28, 1935, when defendant advised plaintiff that the customer was no longer interested. Plaintiff thereupon did nothing further in the matter.

It appears that, unknown to plaintiff, defendant’s customer, in April, 1936, actually bought the property and paid defendant $3,000 as commission. Defendant neglected to share this commission with plaintiff. It further appears that after defendant’s purchaser had completed negotiations for the transfer of the property an officer of the New York Trust Company in charge of the transaction telephoned plaintiff and asked plaintiff to waive its claim for commissions, stating .that to the best of such officer’s belief the purchaser was not the same prospective purchaser with whom plaintiff had been previously negotiating. William May, the president of defendant, denied that he had ever made any arrangement with plaintiff in respect to sharing commissions.

After a trial, a jury in the City Court awarded plaintiff as damages one-half of the sum collected by defendant, to wit, $1,500, plus $225 interest.

It is now suggested that plaintiff should have disclosed to his principal the existence of the pooling arrangement between the parties and that the buyer also intended to pay a commission in which plaintiff was to share. At the trial defendant made no claim that the alleged oral agreement to pool commissions was improper because the respective principals had not been apprised of the alleged arrangement. Indeed, there is no evidence one way or another as to whether such an arrangement had been revealed. That issue was not presented at the trial by the pleadings or by the proof, nor was it submitted to the jury in the charge of the court. The case was submitted on the question as to whether the alleged agreement had been made, as to whether defendant had received a broker’s commission of $3,000 and as to whether plaintiff was deceived by defendant into waiving a commission to which plaintiff would otherwise have been entitled from the seller. In this submission, defendant fully acquiesced. In the absence of any proof or defense that the agreement sued upon was unenforcible for the reason now urged, it is too late to consider such a question. (Muck v. Hitchcock, 212 N. Y. 283, 289; Svenson v. Svenson, 178 id. 54, 62; Valentine v. Long Island R. R. Co., 187 id. 121,126; McCann v. City of Albany, 158 id. 634, 640,641.) In Muck v. Hitchcock (supra, at p. 289) the Court of Appeals said: “ The facts which give rise to such questions were not pleaded, or proved, or found by the trial judge, and for that reason the questions are not before the court. (Gordon Malting Co. v. Bartels Brewing Co., 206 N. Y. 528; Harris v. White, 81 N. Y. 532, 544; Monroe v. Douglass, 5 N. Y. 447; Portsmouth Livery Co. v. Watson, 10 Mass. 91.) ”

Stress has been placed upon the fact that during the course of the negotiations between plaintiff and defendant, which lasted for a period of about three months, defendant stated in a letter to plaintiff that defendant expected to receive from the seller the full commission of five per cent. This condition was contrary to the agreement allegedly made between the parties. However, the evidence which the jury had the right to consider shows that soon after the letter had been received, plaintiff’s representative talked with defendant’s president over the telephone; in that conversation the parties had an understanding that the statement in defendant’s letter was not intended to disturb the original agreement between them. Plaintiff’s omission to answer defendant’s communication by another letter rather than by a telephone conversation certainly is not fatal to plaintiff’s case. The jury may well have believed that plaintiff did not anticipate a law suit and that it was not unusual for a businessman to respond verbally to a written message.

It is also claimed by defendant that the trial court erroneously permitted testimony by plaintiff’s representative, Hoffman, concerning his telephone conversation with an officer of the New York Trust Company wherein plaintiff was asked to waive its commission. If the reception of such testimony was error, it was cured when the court, with the consent of defendant, thereafter received in evidence a letter sent by plaintiff to the New York Trust Company in which letter plaintiff wrote: “ * * * in view of the conditions explained to us, we Will waive all and any brokerage commissions in connection with this particular sale.”

This excerpt was meaningless without the explanation tendered by plaintiff and for that purpose it was competent.

We are unable to agree with the conclusion that the evidence adduced at the trial did not support plaintiff’s recovery. The jury had a right to find, as claimed by plaintiff, that an agreement existed between the parties to divide commissions; that, if there were such an agreement, defendant did not act in good faith when, without plaintiff’s knowledge, it continued to negotiate with the original prospective purchaser and eventually consummated a sale, as a result of which it was paid a commission of $3,000; and that plaintiff had been misled into waiving its commission from the seller by reason of defendant’s conduct which induced plaintiff to believe that the original customer was no longer interested in the property.

Though the evidence was conflicting, there was ample proof in the record to sustain the jury’s determination. The judgment of the Appellate Term should not have been substituted for that of the jury upon an issue of fact. Where a verdict is amply supported by the evidence and the testimony is neither incredible, nor insufficient as a matter of law, the jury’s determination is conclusive. (Roberts Associates, Inc., v. Title Guarantee & Trust Co., 256 App. Div. 850; Hogan v. Franken, 221 id. 164; Dashnau v. City of Oswego, 204 id. 189, 192; appeal dismissed, 236 N. Y. 542; Mieuli v. New York & Queens County Railway Co., 136 App. Div. 373.).

The determination of the Appellate Term should be reversed and the judgment of the trial court in favor of plaintiff should be affirmed, with costs and disbursements to the plaintiff in this court and in the Appellate Term.

Martin, P. J., and Glennon, J., concur; Untermyer and Dore, JJ., dissent and vote to affirm the determination of the Appellate Term.