Blumenthal v. Goodall

Garoutte, J. This cause has been heard in Department and in Bank, and is now before the court in Bank for decision upon an order granting a rehearing.

This is an action for the recovery of commissions claimed to have been earned by a real estate agent in the sale of certain lands belonging to defendant. Judg-J ment for defendant; motion for new trial denied; and] appeal from both judgment and order.

The court found that the defendant, being the owner of the land in question, on the thirteenth day of July, 1887, gave to L. Oesterreicher, a real estate agent, an authorization in writing, of which the following is a copy: “ I hereby authorize Mr. L. Oesterreicher to sell blocks 899, 900, 901, 903, outside lands, for the sum of fifteen hundred dollars ($1,500) each; will allow him one hundred dollars ($100) as commissions for his services on each block. This contract to be in force for ten days from date hereof.” Which paper was duly dated and signed by defendant.

The court further finds that on the same day Oesterreicher agreed with one Fulda, orally, for the sale of the blocks at the price named, but Fulda failing to put his agreemnet in writing, Oesterreicher afterwards, and on the same day, executed with O. F. Von Rhein & Co. the following agreement, in writing:—

“Received of O. F. Von Rhein & Co. the sum of three hundred dollars ($300) on account of purchase of outside land, blocks 899, 900, 901, and 903; price agreed upon, six thousand dollars ($6,000). Subject to perfect record title. Thirty days allowed for examination of title; if title does not prove perfect, deposit to be returned.”

On the same day Oesterreicher notified the defendant in writing of what he had done with Von Rhein; that on the 14th Von Rhein applied to defendant, told him of his agreement to purchase, and asked for the abstract of title. Defendant told him that he would not allow thirty days to examine title. Von Rhein replied that he would make the examination earlier if possible, and [254]•received and receipted for the abstract, the same to be returned to the defendant, but no time for its return specified. Later in the same day, defendant received from Fulda a letter notifying him that he (Fulda) had agreed with Oesterreicher for the purchase of the blocks, and that he was prepared to examine the title and complete the purchase if the title proved satisfactory, demanding of defendant to complete the sale, and offering to deposit five hundred dollars on account thereof; that on the next day defendant served written notice upon both Oesterreicher and Von Rhein & Co., reciting that Oesterreicher had procured the authorization given to him upon his representation that he had an Eastern party, who was about to depart, to whom he could sell those blocks if he had authority to act at once, but he had not time to hunt up other blocks for him before his departure; that instead of selling them, as he said he could, he had negotiated a sale of them to two different resident purchasers, and in view of these complications and misstatements he revoked the authority of Oesterreicher, and declined to proceed further in the consummation of the sale of the property through him; that on the nineteenth day of July, Von Rhein completed his examination of the title and offered to complete the purchase, but the defendant refused to accept the money, or make the deed; that demand of the commission had been made and refused, and the claim therefor had been duly assigned to plaintiff. It was also found that the authorization from defendant had not been secured through any fraud or misrepresentation on the part of Oesterreicher.