Burling v. Gunther

Beach, J.

The main question, at trial term, seems to have been, whether Burling, the plaintiff’s assignor, was a principal in dealing with the defendant, or acted as agent for Harnett, who was originally employed to procure the loan. The complaint counted for work, labor and services done at the defendant’s request, in the matter of obtaining a loan of monejr.

The letter of September 4th, incorrectly dated the 5th, seems competent as tending strongly to show Burling to have been a principal, from its being addressed to him, stating a readiness to accept his loan the next day at one o’clock P. M., and the amount of commissions. It also indicated an acceptance by defendant of the fruits of Burling’s effort, sufficient in so far, to make him liable to pay commissions without proof of prior independent employment.

To entitle himself to commissions, Burling had to produce a party willing to make the desired loan, upon the defendant’s terms. His having done so was evidenced by the letter of Miller & Peckham, dated September 4th, and the defendant’s acceptance above referred to. Its proviso necessitating an agreement about the lawyer’s fees never became important, because neither the defendant nor his papers were present on September 5th at one o’clock, and Miller & Peckham on the 6th by letter to Burling, for that reason, withdrew their acceptance of the loan. If the loan was not made, because the defendant failed to furnish the papers, he could, not by his own default deprive the broker of his right to compensation (Moses v. Bierling, 31 N. Y. 462). The evidence on this point was before the jury, with a correct statement of the law by the learned judge, who charged that if the negotiation fell through by want of performance on the part of defendant, and not through Burling, the plaintiff could recover. The broker was not bound to procure a binding contract to make the loan from the party who was willing to do so. The production of such a party was sufficient in that behalf, and the eventual right to commissions then depended upon subsequent occurrences between the principals. Had the defendant or his papers been present at the proper time, and satisfactory, the failure to agree upon lawyers’ fees ending negotiations, the broker would have lost his commissions. But there was no proof of such facts.

The subsequent exclusion of testimony'given, tending to show the performance of extra services, was permissible. The evidence was very slight, and the course and result of the trial shows it could not have produced any effect upon the jury prejudicial to the defendant. There was no error in declining to charge that the so called written contract was not inconsistent with the fact, if it existed, that Bur-ling was acting as the agent of Harnett. The request called upon the court, to pass without its province, by expressing an opinion of the effect of proof; which, whether consistent or inconsistent with the contention of either party, is to be decided by the jury, and not the court. The issue of Burling being agent or principal, was submitted to them, with the instruction that if found not to have been individually employed, or associated in interest with or acting under Harnett, they to divide the commissions, the plaintiff could not recover.

The form of the complaint is not objectionable. It avers the performance of work, labor and services for the defendant, at his request, his promise to pay for them four hundred dollars, and their being reasonably worth that sum. Full performance of a special contract has always entitled one party to count upon the implied assumpsit of the other to pay (Farron v. Sherwood, 17 N. Y. 227). When the action is in this form, the special agreement must be produced on the trial, that the question of its performance may be intelligently passed upon.

The order of the court below inserting a concession by counsel in the record, concerning the sum to be recovered in case the jury found in plaintiff’s favor, avoids the exception to the charge upon that subject. The wording of the concession is open to criticism for uncertainty in expression. But in view of the charge of the learned judge, in substance that if entitled to recover the verdict should be for the statutory allowance, one hundred and seventy-five dollars, -and of the case having been before this court, and the new trial ordered upon a point based on the statute, and presumably familiar to court and counsel, I think the concession was intended to define the sum, should the plaintiff succeed, because otherwise it was wholly useless. The words “regulated by” should be omitted to conform the reading with the intent and understanding of court and counsel.

The judgment should be affirmed with costs and disbursements.

Charles P. Daly, Ch. J., and' Yah Brunt, J., concurred.

Judgment affirmed, with costs.