Unger v. Hall

NOURSE, P. J.

Plaintiff sued for a commission for services in procuring a lease of real property owned by defendants. The cause was tried without a jury and defendants had judgment.

The facts are not disputed. Plaintiff for many years past was a real estate broker. In 1937 he negotiated for defendants a ten year lease of the premises. Rubin, the lessee, got into financial difficulties and in 1940, while his affairs were in the bankruptcy court, the plaintiff approached the defendants, assured them that Rubin would be compelled to abandon the premises, and persuaded them to permit him to negotiate a lease with a new tenant. Testimony was offered over objection of plaintiff disclosing these facts and the separate oral agreement between the parties that, in the event the Rubin lease could not be terminated, the plaintiff would

[537]

not seek, or be entitled to, a commission for procuring the new lease.

The trial court found in accord with this evidence: “That it was expressly stated and understood between plaintiff and defendants, both before and at the time of the execution of said agreement hereinbefore set forth, that no compensation would be payable to or received by plaintiff unless Rubin, the tenant then in possession were evicted or evacuated from said premises so that possession could be delivered to the lessee obtained by plaintiff, and that plaintiff undertook that matter of securing a new tenant upon such express understanding and agreement.” There is no contention that the evidence does not fully support this finding.

The appellant grounds his attack upon the judgment upon the argument that the evidence was improperly admitted to prove this issue because it tended to vary the terms of the written document by parol. The respondents reply that the evidence was admissible to show a condition precedent, the happening of which was essential to give the document binding force. The appellant also contends that this evidence was inadmissible because the condition of the oral contract was not pleaded, and that, having received part payment of the contract, the agreement as a whole was affirmed by respondents.

From our review of the authorities we are satisfied that the evidence objected to was properly admitted, and, since it was by this evidence alone that the true story was presented to the trial court, the case illustrates the soundness and propriety of the rule which permits a case of this kind to be determined upon the true facts.