Donovan v. Weed

• Decision Date: 30 May 1905
• Citation: 74 N.E. 563,182 N.Y. 43
• Parties: DONOVAN v. WEED et al.
• Court: New York Court of Appeals Court of Appeals

182 N.Y. 43

74 N.E. 563

DONOVAN

v.WEED et al.

Court of Appeals of New York.

May 30, 1905.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Richard J. Donovan against William R. Weed and others. From a judgment of the Appellate Division (83 N. Y. Supp. 682,86 App. Div. 630) affirming a judgment for plaintiff entered on a verdict and an order denying new trial, defendants appeal. Reversed.

Haight, J., dissenting.

Theodore H. Swift, for appellants.

Albert A. Wray, Parker K. Deane, and Stephen Callaghan, for respondent.

CULLEN, C. J.

The action was brought to recover commissions for services as a broker in effecting the sale of a tract of wild lands in St. Lawrence county. The answer put in issue all the allegations of the complaint except the defendants' ownership and the sale of the lands mentioned therein. As the affirmance below was unanimous, the only exceptions which can be reviewed by this court are those taken on rulings of evidence and on the charge. It is therefore unnecessary to refer to the details of the evidence given to support the contentions of the parties, except so far as to present the rulings of the trial court. In January, 1899, the defendants gave the plaintiff an option for the sale of the land at a specified price, they agreeing to pay him 10 per cent. commission in case the option was exercised by himself or by any person he might obtain. On August 31, 1900, the defendants gave the plaintiff another agreement by which they promised to pay him $1 an acre commission if he should bring about the sale of their land at $9 per acre, the option to continue for 30 days. The plaintiff, on September 26th, telegraphed the defendants for an extension of the option, which the latter refused. On September 29th the plaintiff sent to the defendants an acceptance of the option by one John J. Conklin, who it was admitted was an irresponsible party, whom the plaintiff had induced to accept the option, so as thereby to get an extension of time. On December 27th the defendants wrote to the plaintiff, stating that Conklin had failed to carry out the option, and that in consequence thereof they (the defendants) withdrew the same, and terminated the relation with the plaintiff as agent for the sale of the land. During the period covered by these transactions the plaintiff endeavored to effect a sale of the lands to A. A. Low, the owner of an adjacent tract, but no sale was made. In the February following the defendants sold the lands to Mr. Low, as they claimed, through the agency of another person. The learned trial court submitted the case to the jury to determine whether the plaintiff was the efficient cause in procuring the sale, and in that connection charged the following: ‘He [plaintiff] had gone to the Adirondacks at that time in reference to this property. They revoked his authority. They had a right to revoke it at any time they saw fit. A man's authority to a broker to sell his property or to find him a purchaser is revocable at any time; absolutely revocable. But if the broker has already planted the seed, which afterwards grows, and they take the fruits of it, he is entitled to a commission, not because they could not revoke the authority, but because the question is whether what he has already done, whether the crop he has already sown, comes up and ripens. If it does, then he is entitled to his commission. It is exactly the counterpart of the sowing of the seed, which may not mature for months; but, if it does mature, although it matures after the authority to act as a broker has been revoked, the broker is entitled to his commission. * * * It is for you to say whether this sale was the result, in that sense, of Mr. Donovan's negotiations with Mr. Low.’ At the conclusion of the charge counsel for the defendants asked the court to instruct the jury ‘that the defendants...