Lesser v. W.B. McGerry Co., Inc.

■ DOOLING, J.,

pro

tem.

In this action the plaintiff and appellant, Lesser, sued to recover from defendants and respondents, who are real estate brokers, the sum of $1,000 received by such brokers as a deposit or down payment from the proposed purchasers of certain real property belonging to Lesser, under a contract negotiated by said brokers. From a judgment for defendants Lesser appeals.

It appears that the property had been listed for sale with respondents by one Berry acting under an oral authorization only from Lesser. Subsequently respondents secured a contract with Peter J. Finocchio and Louis Bavano to purchase said property for $86,500 subject to Lesser’s approval, and received from Finocchio and Bavano the deposit of $1,000 here in question. On the following day this contract was exhibited to Berry, and Berry, purporting to act as Lesser’s agent, signed a document, “M. M. Lesser, By B. S. Berry”, purporting to ratify this sale for $85,375 net to the seller. The

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printed form of ratification so executed contained the words “ W. B. McGerry

&

Co. may keep and retain as remuneration for their services hereunder - per cent upon the said amount of $-.” These words were stricken from the ratification agreement by drawing a line through them before it was signed. Thereafter the purchasers refused to proceed and after negotiations between them and Lesser they were released from their contract upon paying Lesser $2,150 and assigning to him any rights that they might have in the $1,000 deposit. Thereupon this action was commenced and judgment followed for defendants on the theory that they were entitled to retain the $1,000 as a commission earned by them under their contract.

Appellant first takes the position that the ratification agreement signed by Berry does not satisfy the statute of frauds, since he was admittedly not authorized in writing to execute it. Ordinarily this position would be good, but in this case we are satisfied that the statute was waived by appellant. It is to be remembered that here the party to be bound was the plaintiff and as a part of his own case he offered in evidence the ratification executed by Berry purporting to act as his agent. To this offer counsel for respondents objected unless plaintiff offered the document as binding on himself. After a running discussion the court said: “. . . if it has any obligation at all to the plaintiff, it has a binding obligation, and it is by reason of the fact that some contractual liability rests upon him by reason of that, it must have some credibility. It must have if it has any effect at all, . . . the effect of establishing the relationship between these parties, and it results in mutual duties, obligations and liabilities, and unless it were genuine neither party would be bound.” To this counsel for appellant replied: “I will agree to that”, and upon that agreement the objection was withdrawn and the document admitted. If the benefit of the statute can be waived by the mere failure to object to the admission of evidence as has frequently been held