Empire Realty Etc. Co., Ltd. v. Mehl

BARNARD, P. J.

On July 25, 1931, the defendant, in writing, appointed the plaintiff as his exclusive agent to dispose of certain described real property by sale or exchange. The listing instrument contained an agreement to pay a certain commission if the property was disposed of “directly or indirectly” through the agency of the plaintiff or if the same was disposed of by the defendant to parties procured by the plaintiff, and further provided .that it was to continue in force until canceled. On or about May 10, 1932, the defendant exchanged the property thus listed for another piece of property owned by a Mr. and Mrs. Magill. On May 13, 1932, the plaintiff brought this action to recover the amount agreed to be paid as a commission. The court found practically all of the allegations of the complaint to be true and particularly found that the defendant was brought into contact with the Magills through the efforts of the plaintiff pursuant to the provisions of the contract of employment referred to; that pursuant to the contract and the efforts of the plaintiff an agreement of exchange was executed between the defendant and the Ma-gills on February 19, 1932; that the same was not then consummated; and that thereafter, on or about May 11, 1932, while the contract of employment was still in force, the defendant consummated an exchange of the same properties with the Magills. From a judgment for $1250 in favor of the plaintiff the defendant has appealed.

Upon the main issue the only point raised by the appellant is that the evidence is not sufficient to sustain the court’s findings to the effect that the buyer was procured by the respondent and that the property was disposed of either directly or indirectly through the agency of the respondent.

The following facts appear from the evidence: The respondent acted in this matter through one of its salesmen, J. L. Messenger. For four or five months prior to February, 1932, Messenger had been working with another

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agent named Moses in an effort to bring about a sale or exchange of the appellant’s property and to this end they had together shown several properties during this period. About February 19, 1932, M'oses told Messenger that he had talked to the appellant about certain property owned by Mr. and Mrs. Magill and that he seemed interested and asked him if he could get the appellant to go out and look at the Magill property. Messenger took the appellant to the Magill property and went over it with him. As a result of this visit the parties agreed to an exchange of properties and Messenger prepared a contract providing for such an exchange, which agreement was dated February 19, 1932. This contract contained a provision that it should not go into effect unless the appellant was able to make certain arrangements with his banker. It also contained a provision for the payment of a commission by the appellant to the respondent. Messenger took this contract to the appellant and obtained his signature and then turned it over to Moses, who took it to another agent with whom the Magill property was listed, and that agent obtained the signature of the Magills. The same day, or the next day, the appellant reported to Messenger that he was unable to make the desired arrangement with his banker and could not proceed with the agreement. In the meantime, Messenger and Moses had agreed between themselves how the commission should be divided.