Herzog v. Cooke

• Decision Date: 27 July 1923
• Citation: 99 Conn. 366,121 A. 868
• Court: Connecticut Supreme Court
• Parties: HERZOG v. COOKE.

121 A. 868

99 Conn. 366

HERZOG v. COOKE.

Supreme Court of Errors of Connecticut.

July 27, 1923

Appeal from Superior Court, Fairfield County; James H. Webb, Judge.

Action by Anna Herzog against Thomas M. Cooke. From judgment for plaintiff in insufficient amount, both parties appeal. Judgment set aside, and case remanded, with directions.

Carl Foster, of Bridgeport, for appellant.

Homer S. Cummings and Raymond E. Hackett, both of Stamford, for appellant.

CURTIS, J.

The defendant in his appeal makes numerous requests for the correction of the finding. The case in our opinion is determined by the portions of the finding which the defendant does not seek to have materially changed, and the legal results flowing from which would not be affected if the changes sought were made. The matter of correcting the finding therefore need not be further considered.

The finding disclosed that in 1919 the plaintiff owned a parcel of real estate with a house and buildings thereon in Greenwich, and that in the spring of 1919, she had sailed for France and had resided there since that time. Before sailing she placed the property in the hands of several real estate brokers at Greenwich for sale, and employed one Bernard M. L Ernst, an attorney practicing in New York City, to handle her business matters in this country during her absence abroad and among other things called his attention to the fact that she owned the real estate in Greenwich which was for sale and that it was in the hands of real estate brokers in Greenwich, and she desired her attorney to co-operate with her real estate broker or brokers in the sale of the real estate for the highest possible price.

The defendant is a real estate broker in Greenwich and about November 13, 1919, called upon Ernst and stated to him that he knew Mrs. Herzog and knew her property in Greenwich, and that she had employed him to sell it for her and that he had found a purchaser who would pay $22,000 for it, and that the defendant's commission for selling the property would be 5 per cent. of the purchase price, to be paid by Mrs. Herzog from the purchase price.

The defendant stated to Ernst that the property was in bad condition, and there was a general deterioration in the property, and that it would be for the best interest of the plaintiff that it be sold.

Ernst had no personal knowledge of the condition of the property nor its fair value, nor did he know the price the plaintiff desired to receive for the property, nor the sum for which she would consent to sell it.

Ernst believed the statements of the defendant, and at the defendant's request, the defendant offering to pay the expense thereof, on November 13, 1919, cabled to the plaintiff at Paris as follows: " Offered $22,000, Greenwich, with contents less commission. Advise."

On November 17, 1919, Ernst received a cablegram from the plaintiff as follows: " Agree $22,000 net with contents excepting books papers and cellar matter belonging to Theitel. Cable reply."

On November 18, 1919, Ernst advised the defendant that the plaintiff would sell the property to the purchaser, who had been secured by the defendant, for $22,000 net.

Afterwards the defendant informed Ernst that it was impossible to secure more than $22,000 gross for the property; and on November 21st, at the defendant's request and at his expense, Ernst cabled the plaintiff as follows: " 22,000 gross best obtainable. Commission 5 per cent. Advise."

On November 21, 1919, the plaintiff cabled Ernst as follows: " Please close. Remit proceeds franc cheque order Madam stop. Instruct Weill Audubon 2640 Remove contents."

Thereafter a contract was entered into between the plaintiff and one Carl J. Wold, whom the defendant represented as the purchaser, wherein the plaintiff agreed to sell the property to Wold for the gross sum of $22,000, and in pursuance thereof a deed of the property was delivered to Wold on February 17, 1920.

The defendant paid the plaintiff $20,900, for the property, being the selling price of $22,000 less a 5 per cent. commission of $1,100.

On May 5, 1920, Carl J. Wold conveyed the property to Ada L. Cooke, a sister of the defendant, and she on May 26, 1920, by the defendant's direction, conveyed the property to one Edgar H. Arnold, who paid the defendant $36,000 for it.

While the property was by the plaintiff apparently sold to Wold and by Wold to Ada Louise Cooke and by Ada Louise Cooke to Arnold, in truth and in fact the defendant was the real purchaser of the property from ...