Root v. Greadwohl

LENNON, P. J.

This is an appeal from a judgment and from an order denying a new trial in an action upon a promissory note, wherein the plaintiff was awarded a judgment against the defendant in the sum of four hundred dollars.

The note in suit was executed by the defendant to plaintiff’s assignors in payment of a broker’s commission for the sale of certain real estate belonging to the defendant. As a defense to the action the defendant in her answer alleged in substance that she never contracted to give the note sued on;- that she never agreed to pay the money at the time, in' the manner, or in the amount specified in the note; that the note did not- express the terms and conditions of the real contract between plaintiff’s assignors and defendant; that the note was signed by the defendant through mistake and under a misapprehension as to its contents, and finally that the consideration for the note had wholly failed before it became due.

The court found generally and specifically that all of the allegations of the plaintiff’s complaint were true, and that all of the denials and defenses of the defendant’s answer were untrue.

There is no merit in the defendant’s contention that the trial court should have found in favor of the defense of a failure of consideration merely because the evidence adduced at the trial showed that the purchaser procured by plaintiff’s assignors for defendant’s property failed to pay the full purchase price thereof as agreed. The sale of the defendant’s property to. the purchaser procured by plaintiff's assignors was completed, and the broker’s commission earned, when the defendant, after receiving one thousand dollars in cash on account of the sale, gave the purchaser a deed to the property and took his note, secured by a mortgage upon the land sold,

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for four thousand five hundred dollars, the balance of the purchase price. The services of a realty broker are fully performed and his commission fully earned when the sale of the property is completed or when he has procured a purchaser ready and willing to enter into a valid contract of sale upon the terms fixed by the owner.

(Dolan

v.