Floyd S. Corbin, Respondent, v. Mechanics and Traders' Bank, Appellant

Floyd S. Corbin, Respondent, v. Mechanics and Traders’ Bank, Appellant. First Department, November 8, 1907. Broker’s . action for commissions — financial ability of -purchaser —- agreement contingent on defendant’s, acquisition of title. AVhen the negotiations for the sale of lands by a broker have not resulted in • an enforcible .contract, he must show; in order to recover commissions, that his .proposed customer was not only willing but able to purchase upon the’terms Of .the seller.- - - When in such action it appears that the defendant bank had merely intimated that it would he willing to sell for a certain, sum property it was expecting to acquire on foreclosure, services of a broker in seeking a purchaser at that figure must he deemed to" have been dependent upon the final result, of the foreclosure and he is not entitled to recover when the defendant fails to acquire title. • ' Appeal by the defendant, the Mechanics and Traders’ Bank,' from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of -Mew York on the 21-st day of January, 1907, iipon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of January, 1907, denying -the defendant’s motion foi* a new trial made upon.the minutes. Charles Strauss, for the appellant. John J. Crawford, for the respondent, [MAJORITY — Lambert, J.:] Lambert, J.: This is an action to recover commissions alleged to have been earned by the plaintiff under an employment by the defendant to sell certain real estate on Long Island. The complaint alleges that under this employment plaintiff procured an offer of' $40,000 cash for said property “ from a person who was 'ready and willing to pay . said sum therefor, and plaintiff communicated said offer to the defendant, but the defendant was unable to make or perfect a title . to said property, whereupon and on or about the 26th day of December, 1902, the person who made the said offer withdrew the same.” This is denied by the answer, and we are of the opinion that the plaintiff was then bound to show that his proposed purchaser was ready and willing to pay tlie sum alleged before there can be any recovery. The rule is generally recognized; where the negotiation of sale has not. resulted in an enforcible'contract, it is necessary that the broker should show not only that his proposed customer is willing but able to purchase upon the terms of the seller. (Woolley v. Lowenstein, 83 Hun, 155, 156; Alt v. Doscher, 102 App. Div. 346.) There is no evidence here to show that Mr. Sulzer, the proposed purchaser, was willing and able to take the premises upon the defendant’s terms. There is nothing to show Mr. Sulzer to be able to pay $40,000, and if there was, there is no evidence that the defendant was ever willing to take $40,000, or any other sum, provided it had the right to sell. There was, we may assume from the plaintiff’s evidence, some general .talk that the defendant was about to foreclose a certain mortgage which it held upon the premises, and 'that the bank would be satisfied to get out of it with the amount .of its claim, with interest, expenses, etc., but it is certain that the plaintiff was not authorized to sell for this figure, for he reported to the defendant’s representative two offers in excess of some $32,000 or $33,000, being the sum involved, and these were "rejected, and . the proposition for $40,000 was only under consideration when the negotiation came to an end because the' bank could, not get title. There is no suggestion of any fraud or bad faith in the matter, and the evidence fails to disclose any figure which the defendant was willing to accept for the premises. We are of opinion, under the evidence, that the plaintiff knew fully the condition of the title; knew that the defendant might not be able to complete title, for its only foundation was a mortgage in process of foreclosure, which the defendant,in that action might defeat at-any time before the sale by the payment of the claim which it was, given to secure, and that he was merely taking tile'chances incident to the situation,. his commissions depending upon the final result of the foreclosure and the sale if the defendant took title. But, in any event, the evidence fails .to establish the ca-use of action for the reasons above set forth,.and the judgment and order appealed from should be reversed and a new trial ordered, with costs’to the appellant to abide the event of the action. '■! Ingraham and Scott, JJ., concurred; Patterson, P. J., and Clarke, J., concurred in result. Judgment and order reversed, new'trial ordered, costs to appellant to abide event.