THE NEW YORK SUPPLEMENT VOLUME 140 DU BOIS et al. v. MULLINS. (Supreme Court, Appellate Term, First Department. February 18, 1913.) BROKERS (8 71*)-COMMISSIONS-WHEN EARNED. Where an owner, requesting a broker to obtain a loan, signed a written application directing the broker to procure a loan for a specified sum to cover all expenses, and thereafter he refused to take the loan, and notified the broker to discontinue negotiations, the broker could recover his commission, and the expenses incurred to the time of the notice, but not for the full amount specified, which covered all expenses as well as commission. [Ed. Note. For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. § 71.*] Lehman, J., dissenting. Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Charles A. Du Bois and another, doing business under the firm name and style of Du Bois & Taylor, against Kathleen L. Mullins. From a judgment of the Municipal Court for plaintiffs, defendant appeals. Reversed, and new trial ordered. Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ. James E. Bennet, of New York City, for appellant. PAGE, J. The action was to recover for the agreed value of the plaintiffs' services as brokers. The defendant requested the plaintiffs to obtain a loan for her of $1,500 upon the security of a second mortgage upon vacant lots in the borough of Brooklyn. Mr. Du Bois inspected the property, and on his recommendation his wife agreed to make the loan from her separate estate. On December 22, 1911, Mr. Taylor reported to the defendant that he had obtained a person who would make the loan and that the expense would be $275, to cover everything. Thereupon a written application for the loan, upon plaintiff's blank, was signed by the defendant, that stated the terms of the For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 140 N.Y.S.-1 loan, with a diagram of the property upon which the mortgage would be a lien, and concluded with these words: "You are hereby authorized to procure for me the above loan, and I agree to pay to Messrs. Du Bois & Taylor the sum of two hundred and seventy-five ($275) dollars, to cover all expenses." On January 5, 1912, the defendant wrote to the plaintiffs, requesting them that, if they had not already had the title searched, not to have it done, as she had received a remittance from home, and would not require the loan. And again, on January 8th, the defendant wrote to the plaintiffs: "Please do not go to any further trouble or expense in the matter than already incurred. * Kindly discontinue negotiations for a loan, as I shall not require it." To which plaintiffs replied: "We have instructed the Lawyers' Title Insurance Company to discontinue. To say the least, your action has placed us in a very embarrassing position, and we shall certainly look to you for expenses, as per signed agreement." Upon these facts the plaintiffs were entitled to recover their commission and such expenses as they had incurred when they were notified that defendant would not take the loan, but not for the full amount specified. Finck v. Menke, 31 Misc. Rep. 748, 64 N. Y. Supp. 38. The $275 was to cover all expenses, and not for the commission alone. The estimated expenses for searching the title and closing the loan had only been partially incurred. The court below gave judgment for the full amount. For this error the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. SEABURY, J., concurs. LEHMAN, J. (dissenting). According to the plaintiff's story, he called on the defendant and was asked by her to procure a loan of $1,500 on second mortgage on some lots owned by her. Plaintiff then spoke to his partner, who, after inspection of the property, spoke to his wife, and she agreed to take the loan on the proffered terms. Thereafter the plaintiff called on the defendant and told her he had a party who would make the loan, and that the expense would be $275 to cover everything. · The defendant then signed a written authorization on plaintiffs' own blank, stating the terms on which she wanted a second mortgage loan, and concluding with the words: "You are authorized to procure for me the above loan, and I agree to pay to Messrs. Du Bois & Taylor the sum of two hundred and seventy-five ($275) dollars, to cover all expenses." About two weeks thereafter the defendant notified the plaintiffs that she did not care to obtain the loan. The plaintiff at the trial further showed that his partner's wife was ready, able, and willing to make the loan, if the title was good. Upon this testimony the plaintiffs have recovered a judgment for the sum of $275. The broker was employed for a definite purpose-to procure a loan upon definite terms proposed by the defendant. Until the broker had actually earned his commissions, the defendant had a perfect right to cancel the agent's authority, providing she was acting in good faith. The plaintiff claims that his work was finished when he obtained the written authority on December 22d, because he had already informed the defendant that he had a party who was willing to make the loan; but it is quite evident, from the form of the authorization, that he was employed to do more than procure a party able and willing to enter into an agreement for a loan, whom he would produce whenever it suited his purpose. It was after he had informed the defendant that he had this party that the authorization was signed, and his employment at a fixed compensation arranged, and the complaint itself is for services rendered after the authorization was signed; yet thereafter the plaintiff seems to have performed no services, except putting in a search at the Title Company. At that time the plaintiff had absolutely failed to procure for the defendant any loan, and had not even produced a person who was able and willing to make the loan. It follows that, at the time when defendant refused to proceed with the transaction, she had a right to cancel plaintiffs' employment without any liability. The judgment should be reversed, with costs, and the complaint dismissed, with costs. (155 App. Div. 260.) JOHN REIS CO. v. ZIMMERLI. (Supreme Court, Appellate Division, Second Department. February 14, 1913.) 1. BROKERS ( 82*)-ACTION FOR COMMISSION-PERFORMANCE OF CONTRACTCOMPLAINT. Where a broker's complaint for commissions alleged that defendant agreed to pay 21⁄2 per cent. on the purchase price on the passing of title to the purchaser as agreed, but failed to allege that the title had ever passed to the purchaser, or that it failed to pass by reason of any fault on defendant's part, it was demurrable. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. 82.*] 2. PLEADING (§ 225*)-DEMurrer-CompLAINT AMENDMENT-SCOPE. Where a demurrer was sustained to the complaint, on the ground that the facts stated did not constitute a cause of action, plaintiff was entitled to leave to amend by pleading any other and further facts that he might have in support of his claim, and should not be limited to an allegation of particular facts wanting in the original complaint. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 575-583; Dec. Dig. § 225.*] Appeal from Special Term, Kings County. Action by the John Reis Company against Edward Zimmerli. From an order dismissing plaintiff's complaint on the pleadings, and permitting plaintiff to amend, it appeals. Modified and affirmed. Argued before JENKS, P. J., and BURR, THOMAS, CARR, and WOODWARD, JJ. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Henry M. Dater, of Brooklyn (George F. Elliott and Jay S. Jones, both of Brooklyn, on the brief), for appellant. Leonard J. Reynolds, of Brooklyn (Richard A. Geis, of Brooklyn, on the brief), for respondent. WOODWARD, J. [1] The plaintiff brings this action to recover a commission alleged to have been earned in the selling of certain real estate for the defendant. The complaint alleges the employment and that its representative procured a purchaser ready, willing, and able to make the purchase upon the terms fixed by the defendant, and that such contract was actually entered into between the defendant and the proposed purchaser, and that by the terms of such contract the defendant recognized the plaintiff's representative as the procuring cause of the sale and agreed to pay the sum of 22 per cent. upon the purchase price of $45,000, upon terms fixed by the said defendant, "upon passing of title as agreed." The complaint fails, however, to allege that the title to said premises ever passed, or that it failed to pass by reason of any fault on the part of the defendant, and we are clearly of the opinion that under the authority of Larson v. Burroughs, 131 App. Div. 877, 116 N. Y. Supp. 358, the learned court properly sustained the defendant's demurrer to the complaint and permitted an amendment thereto. [2] We apprehend, however, that the learned court at Special Term did not intend, by its order, to limit the right of the plaintiff in pleading over to the particular allegations suggested. A party has a right to plead his cause of action, whatever it may be; and where the demurrer is upon the ground that the facts stated did not constitute a cause of action, it is proper that the plaintiff should be permitted to plead such other and further facts as he may have in support of his claim, and if the order appealed from may be interpreted to limit the plaintiff to "affirmatively alleging that the contract annexed to and made a part of the complaint was not carried out, and that the nonperformance of the same was the fault of the defendant," it should be modified, so as to permit the plaintiff to set forth any facts which may entitle him to recovery in the present action. Under the circumstances, we think the costs and disbursements of this appeal should be allowed the respondent. As thus modified, the order appealed from should be affirmed, with $10 costs and disbursements to the respondent. All concur. (155 App. Div. 156.) GRABFIELD v. HARALSON COUNTY BANK OF BUCHANAN, GA. (Supreme Court, Appellate Division, First Department. February 7, 1913.) PRINCIPAL AND AGENT (§ 166*)-UNAUTHORIZED ACTS-RATIFICATION. M. & Co. authorized its salesman to collect for his sales either in cash or checks, to indorse the checks in its name "for exchange only," and to obtain in exchange therefor cashiers' checks or other exchange for remittance to it. The salesman opened an account in his own name in For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes defendant bank, deposited the checks, indorsed in his own name and the name of M. & Co., and obtained cashiers' checks or other exchange for remittance, principally from other banks. Some time before his receipt of checks for which he failed to account, an auditor was sent over his route to visit the customers and check up payments and checks. Held, that M. & Co. was charged with notice that he was not following his instructions, since the auditor must have learned that the cashiers' checks for remittances were not issued by the banks which cashed the customers' checks, and, moreover, the company must have expected the salesman to open an account, as it could hardly have expected a bank with which he had no account to issue cashiers' checks for the full amount of the customers' checks, and hence could not recover from defendant the amount of the checks cashed by it and not accounted for by the sales man. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 627-633; Dec. Dig. § 166.*] Appeal from Trial Term, New York County. Action by Joseph P. Grabfield against the Haralson County Bank of Buchanan, Ga. From a judgment for plaintiff on a directed verdict, defendant appeals. Reversed, and complaint dismissed. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, SCOTT, and DOWLING, JJ. G. H. Payne, of Medina, for appellant. George W. Morgan, of New York City (Henry H. Abbott and Edward A. Craighill, Jr., both of New York City, on the brief), for respondent. LAUGHLIN, J. This is an action on an assigned claim of Morris & Co., a Maine corporation, which was engaged in the business of packing meat and of refining lard and oil, having an office at East St. Louis, Ill., to recover the sum of $3,428 for moneys alleged to have been had and received by the defendant to the use of Morris & Co., being the proceeds of checks made by customers of Morris & Co. to the order of the corporation and indorsed by one Wills, its sales agent, and deposited to the credit of his individual account with the defendant, and subsequently checked out and appropriated by him to his own use. Wills was employed by Morris & Co. in the summer of 1907, and after working at a plant for about a month to learn the business, he was sent out as a salesman to represent it in selling its products and collecting therefor on a car route between Cedartown and Griffin, Ga. He was expressly authorized to collect for his sales, either in cash or by obtaining checks on local banks to the order of his employer, in which case he was instructed to indorse the name of the payee on such checks "for exchange only," and to obtain in exchange therefor cashiers' checks or bank drafts or other exchange, and remit such exchange, instead of the checks of customers, to Morris & Co. It appears by the testimony of the credit manager of Morris & Co. that these were the general instructions which he was authorized to give and did give to all salesmen, including Wills, and that the salesmen were under his charge and control with respect to collections and financial transactions with the company. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |