Amies v. Wesnofske

• Decision Date: 06 January 1931
• Citation: 255 N.Y. 156,174 N.E. 436
• Parties: AMIES et al. v. WESNOFSKE et al.
• Court: New York Court of Appeals Court of Appeals

255 N.Y. 156

174 N.E. 436

AMIES et al.

v.WESNOFSKE et al.

Court of Appeals of New York.

Jan. 6, 1931.

Action by Wilbur F. Amies and J. Emma Hines, as executrix of the last will and testament of Stephen J. Hines, deceased, against John Wesnofske and another. Judgment of the Trial Term entered upon a verdict of the jury in defendants' favor was reversed as a matter of law by the Appellate Division (230 App. Div. 761, 243 N. Y. S.885), and judgment directed for plaintiffs, and defendants appeal.

Judgment of the Appellate Division reversed, and that of Trial Term affirmed.

CRANE, HUBBS, and LEHMAN, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Second Department.

Charles I. Wood and Harry W. Moore, both of Mineola, for appellants.

Henry Vollmer, Jr., and George C. Wildermuth, both of Brooklyn, for respondents.

KELLOGG, J.

The defendants, on December 9, 1925, entered into a written contract with Harry F. De Riesthal and Charles E. Crawford, whereby the former agreed to sell to the latter certain real estate at a named price per acre, totaling approximately $124,000 for the entire acreage. The sum of $10,000 was presently paid; $30,000 was made payable on April 9, 1926, when the deed was to be delivered; the balance was to be paid by the executionand delivery of a purchase-money mortgage. The plaintiffs, Amies and Stephen J. Hines, whose estate is represented by the plaintiff J. Emma Hines, were a brokerage firm, doing business as Amies & Hines. They introduced De Riesthal and Crawford to the defendants, by whom they were accepted as purchasers ready, willing, and able to buy. Simultaneously with the execution of the contract of sale, the defendants executed and delivered to Amies & Hines a writing recognizing the employment of the partners as their agents. The writing stated that, ‘We agree to pay for their services in bringing about such sale the sum of Five Thousand ($5,000) Dollars, one-half of which is paid this date and the balance to be paid on the closing of title.’ The closing of title was adjourned from April 9 to June 1, 1926, when De Riesthal and Crawford, for lack of funds, declined to complete the purchase. Accordingly, it was agreed between the buyers and the sellers that the sellers might retain the $10,000 already paid, and that the obligations of the contract should otherwise cease. In this action a recovery of $2,500, the balance of the commissions remaining unpaid, is sought.

Self-evidently the writing delivered to Amies & Hines does not integrate the original contract of employment made by them with the defendants; nor is it an exclusive memorial of the defendants' promises originally made. The defendants ‘recognize’ Amies & Hines ‘as the agents who brought about the sale of our farm to De Riesthal and Crawford, with whom a contract is entered into this day.’ Here is an acknowledgment of a prior employment of Amies & Hines to render services now already performed; not a memorandum of a contract yet to be performed. Nor can the writing bind the brokers, who accepted it, as the integration of a new contract entered into on the day of its making. The brokers, having already performed the services they had undertaken, were presently possessed of a chose in action entitling them to recover commissions according to the express or implied terms of an agreement precedently made. Therefore, a new agreement, involving a surrender of the chose in action and the substitution of a promise to pay upon new terms, without consideration paid, would have been unenforceable. Reis Co. v. Zimmerli, 224 N. Y. 351, 120 N. E. 692. Not being conclusive upon the plaintiffs, as an exclusive memorial of the original contract, or as an embodiment of the terms of an enforceable contract newly made, the writing, as to the defendants, was likewise inconclusive. It may have been intended to have force as a written admission of the defendants' original promise. Also, the acceptance of the writing by the brokers may have constituted an admission by them that the writing correctly stated the terms of the original contract of employment. However, regarded as admissions, neither the writing nor its acceptance conclusively bound the parties to the action. For these reasons, resort to parol proof was reasonable and necessary, in order that the terms of the original contract of employment might be determined.

Proof was given by the plaintiffs that the defendants, at the time when the contract of employment was made, unconditionally promised to pay the brokers the sum of $5,000 as their commissions for procuring a sale. Proof was given by the defendants that, at the very moment of employment, the defendants agreed to pay and the brokers agreed to accept the sum of $5,000, ‘half on the contract and half on the closing of the deal,’ as stated by the defendant Johanna Wesnofske; ‘twenty-five hundred to get when we draw the contract and the other half they get when they close the deal, after the deal is closed,’ as stated by the defendant John Wesnofske. The testimony of the defendants is in precise accord with the writing delivered to the brokers whereby the defendants admitted an obligation to pay one-half of the commissions ‘on the closing of title.’ The trial judge charged the jury that the plaintiffs might recover if the defendants unconditionally promised to pay the sum of $5,000 for commissions; that they might not recover if the defendants promised to pay $2,500 on the signing of the contract, and ‘the other half of it when the title was closed.’ The jury, in reporting a verdict for the defendants, necessarily found that the agreement, as stated by them, was the agreement entered into. As the Appellate Division reversed on the law only, we must assume it to have been the established fact that the defendants promised to pay the balance of the commissions, or $2,500, ‘on the closing of title,’ and not otherwise. The first question to be decided is whether or not this was a promise to pay upon a condition which has not been fulfilled; the second, whether or not the fulfillment of the condition, assuming that the promise was conditional, has been waived.

The employment of such words as ‘when,’ ‘after,’ or ‘as soon as,’ clearly indicate that a promise is not to be performed except upon a condition. Williston on Contracts, vol. 2, § 671. Promises to pay broker's commissions, for the procurement of sales of real estate, are conditional when expressed to be performable ‘on the day of passing title’ (Leschziner v. Bauman, 83 N. J. Law, 743, 85 A. 205); ‘when the sale is completed’ (Sams v. Olympia Holding Co., 153 Wash. 254, 257, 279 P. 575, 577); ‘upon delivery of the deed and payment of the consideration’ (Tarbell v. Bomes, 48 R. I. 86, 87, 135 A. 604, 51 A. L. R. 1386); ‘at settlement’ of the total consideration (Simon v. Myers, 284 Pa. 3, 6, 130 A. 256, 257); ‘when the sale is consummated’ (Alison v. Chapman, 36 Cal. App. 759, 760, 173 P. 389, 390); ‘at the date of passing title’ (Baum v. Goldblatt, 81 Pa. Super. Ct. 233, 238); ‘at the time of the consummation’ of the sale (Morse v. Conley, 83 N. J. Law, 416, 417, 85 A. 196, 197); if the ‘deal is completed’ (Pratt v. Irwin [Mo. App.] 189 S. W. 398, 399); ‘if the deal now pending’ is consummated (Goodwin v. Siemen, 106 Minn. 368, 369, 118 N. W. 1008, 1009); ‘only when the seller’ has ‘received her full purchase price’ (Norris v. Walsh, 71 Colo. 185, 186, 205 P. 276).In Alder v. Boyle, 4 Man. G. & S. 635, the agreement was to pay an agent, for the procurement of an exchange of advowsons, the sum of £100, ‘one-third down, the remaining two-thirds when the abstract of conveyance is drawn out.’ The third party failed to deliver his abstract to the defendant and the exchange fell through. It was held that commissions were not recoverable; Wilde, C. J., saying: ‘It appears to me to be perfectly plain, that the money was to be paid only upon the happening of an event that has not occurred.’ It has been suggested that a promise to pay ‘when’ a named event happens, or ‘upon’ the happening of the event, may be differentiated from a promise to pay ‘if’ the event happens; that the promise to pay is absolute, and the words ‘when’ or ‘upon’ refer only to the time of performance. Certainly, whether the one construction or the other be correct, the result must be the same; since, if the event does not befall, or a time coincident with the happening of the event does not arrive, in neither case may performance be exacted. Nor will it do to say that a promise to pay ‘on the closing of title’ is a promise to pay on the date fixed by the contract of sale for the closing of title. No such thought is expressed by the words. It is the event itself, not the date fixed for its happening, which makes the promise to pay performable. We think that reason and authority compel the conclusion that we have here a promise to pay a broker upon a condition which has not been fulfilled.

The question remains whether the condition qualifying the promise, that it should become performable only upon ‘the closing of title,’ has remained unfulfilled, because of any fault upon the part of the defendants. If a promisor himself is the cause of the failure of performance of a condition upon which his own liability depends, he cannot take advantage of the failure. Williston on Contracts, vol. 2, § 677; Dolan v. Rodgers, 149 N. Y. 489, 44 N. E. 167;Matter of Casualty Co. (Claim of Bliss Co.), 250 N. Y. 410, 419, 165 N. E. 829. ‘It is a well settled and salutary rule that a party cannot insist upon a condition precedent, when its non-performance has been caused by himself.’ Young v. Hunter, 6 N. Y. 203, 207. ‘It is as effective an excuse of performance of a condition that the promisor has hindered performance as that he has actually prevented it.’ Williston on Contracts, vol. 2, § 677. The American Law Institute, in its ‘Restatement of the Law of Contracts' (Tentative Draft No. 6, § 289), under...