Blumenthal v. W. I. Hollingsworth & Co.

WOOD (Parker), J. Plaintiff appeals from an order granting defendant’s motion for a new trial. In a trial without a jury plaintiff had judgment for $2,250, which amount represented one-half of a commission paid to defendant for the lease and sale of certain real property. Defendant’s motion for a new trial was granted on the ground of insufficiency of the evidence to sustain or justify the decision.

Plaintiff and defendant were licensed real estate brokers. Defendant had the exclusive agency to sell certain real property owned by Arden Farms Company,, which company will be referred to' as Arden. Arden agreed to pay defendant a commission for its services as such agent. Defendant posted a notice on said property which stated that defendant was the sole agent, and that anyone interested in the property should see Mr. Hughes. Hughes was a salesman for defendant, licensed to sell real estate under defendant’s license, and “handled all the Arden property” listed with defendant for sale. A company by the name of Marketville, Inc., which will be referred to as Marketville, desired to acquire a parcel of property on which to erect a farmer-type market. Plaintiff was the exclusive agent of Marketville to lease or purchase a suitable site for such a market. Plaintiff saw the Arden property, read the notice posted thereon, telephoned defendant company, talked with Hughes, and arranged for an interview. He then went to defendant’s office where he and Hughes discussed the property. Thereafter, plaintiff communicated with his principal and a meeting was held which was attended by Hughes, plaintiff, and two representatives of Marketville. Thereafter, on February 21, 1941, Marketville made an offer to purchase which was rejected by Arden. Subsequently, several meetings were held at which plaintiff, Hughes, and representatives of both Marketville and Arden were present. Hughes was the only representative of defendant company who participated in said meetings. One meeting was held between a representative of Arden and a representative of Marketville. As a result of negotiations at these meetings, a lease with an option to purchase, drawn by attorneys for Arden and Marketville, was executed on May 14, 1941. Said lease provided in part: “It is understood and agreed by the lessor and the lessee that W. I. Hollingsworth & [339]Co., duly licensed real estate brokers, are representing the Lessor in connection with this lease, and the option herein contained and shall be paid a commission by the Lessor herein.” No provision was made therein in regard to plaintiff and there was no written agreement between plaintiff and defendant to share said commission. The option was subsequently exercised and a commission of $4,500 was paid to defendant by Arden. After the execution of said contract, plaintiff telephoned Hughes and asserted an interest in the commission. Hughes related plaintiff’s assertion to Mr. Swan, secretary and general manager of defendant company, who arranged a meeting at which he, plaintiff and Hughes were present. This was the first time that Swan had seen plaintiff or had had any communication with him. Plaintiff’s claim for a commission was discussed but no decision was made, and it was decided to resume the discussion at a later date. Hughes died before another meeting was held. There were subsequent discussions between plaintiff and Swan concerning plaintiff’s claim.