Johson v. Sirret
| Decision Date | 04 May 1897 |
| Citation | 46 N.E. 1035,153 N.Y. 51 |
| Parties | JOHSON v. SIRRET. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, general term, Fifth department.
Action by Margaretta F. Johnson, as executrix, against William B. Sirret and others. Judgment for plaintiff. Defendant appeals to the general term (31 N. Y. Supp. 917), and from the judgment affirming that of the special term defendants appeal. Reversed.
Tracy C. Becker, for appellants.
Clark H. Timerman, for respondent.
The three defendants, Sirret, Scheu, and Morganstern, on the 9th of September, 1887, entered into a written contract with one Thomas Connaroe, of which the following is a copy: The plaintiff, as the executrix of the will of Connaroe, seeks to recover up on this contract. The trial court found that an undivided quarter interest of the premises had been sold, and that Connaroe's representative was entitled to recover commissions upon that portion of the land at the contract rate of $30 per acre. The general term affirmed the judgment. The premises were conveyed by Mary A. Johnson and Margaretta F. Johnson, at the request of defendants, in the following proportions: To defendant Scheu one-half, to defendant Sirret one-quarter, to Martha Millet one-quarter. The defendant Scheu held one-quarter of the premises for the defendant Morganstern, and Martha Millet held title for the benefit of one Patrick Millet. On the 11th of April, 1890, Morganstern parted with his undivided quarter interest, and by his direction Scheu conveyed it to one John L. Williams. Williams was sworn at the trial, and, after stating in detail the transaction, said: The question presented by this appeal is whether the conveyance by Scheu to Williams of Morganstern's undivided quarter interest was a sale of a parcel of the land within the meaning of the contract. The courts below have held that it was, but we are unable to adopt this construction. Connaroe, as a broker or negotiator of the sale, had purchased the premises for the three defendants, and the vendors were to convey as the purchasers should direct. Sirret and Scheu became seised of an undivided quarter interest each as their own property, and Scheu held another undivided quarter interest for Morganstern. Scheu testified that Morganstern was not prepared to make the payments on his share, and it was arranged that Scheu should take title, make the payments, and when premises were sold he was to reimburse himself, and pay Morganstern his share of the profits. Scheu advanced over $6,000. Times were hard, and, after several years of waiting, he induced Morganstern to find some one to take his interest. In pursuance of this suggestion Morganstern produced Williams, who paid Scheu his advances, but no new consideration, and received the conveyance of Morganstern's undivided quarter interest. The original transaction, resulting in the contract, was evidently a speculation, in which the defendants became the owners of 125 acres of land, and the broker or negotiator postponed the payment of his commissions until the premises were sold, or some parcel thereof, or the same should be taken by legal proceedings or the exercise of the right or eminent domain.
Counsel agree that defendants are jointly liable under this contract, and it is apparent that the intention of the parties was to pay the broker his commissions when the premises were sold, or any part thereof. The contract contemplates a joint conveyance of a part of the whole of the land, and a joint payment of commissions. It is not reasonable to assume, in the absence of any express provision to that effect, that the defendants Sirret and Scheu agreed to pay the broker his commissions on the transfer of Morganstern's undivided quarter for his own convenience and benefit, and in which they had no interest whatever. It is the plain meaning of the contract that when these joint purchasers made a joint sale of any portion or the whole of the premises, they were to pay commissions.
It is urged that there has been a sale of an undivided quarter interest, and that the broker is deprived of his commissions on that transaction. The answer to this suggestion is that the contract did not provide for this contingency. It was evidently supposed that the joint purchasers would sell the land as a whole or in parcels, and the broker was to be paid at the time of the sale or sales. The transfer of undivided interests among themselves, or to third parties, was not considered. The defendant Morganstern was unable financially to carry his undivided interest, and he induced Williams to take his place in the venture. We regard this as a transaction neither within the letter nor the spirit of the contract, and are of opinion that the judgment appealed from must be reversed, and a new trial ordered, with costs to abide event.
The facts in this case are few and simple. The three defendants in this action employed the plaintiff's testator as their agent to purchase for them and another party 125 acres of land in Buffalo. He performed the services, and purchased the land, which was conveyed to three of the parties as tenants in common. These three parties took each an undivided onefourth interest, except one of them, who took one-half, holding one share, or one undivided quarter, in trust for the fourth party. There were, then, four parties interested in the purchase, each holding one-fourth. They purchased and held the lands in anticipation of an advance in value, and a sale in the future at a profit. In order to secure to the agent or broker who acted for them his compensation for his services, the three defendants in this action executed and delivered to him the following written agreement: It will be seen that the stipulated compensation was to be paid to the agent in full ‘on the sale of the tract of land,’ and, in case of a sale of a parcel less than the whole, a proportionate part of the compensation, at the time of the sale of such parcel. It is conceded that the promise in this agreement is joint, and, if there is any liability at all, the defendants must respond jointly. The whole tract was not sold, and the only question in the case is whether there has been a parcel sold, so as to entitle the agent to the proportionate compensation, within the meaning of the contract. It is found by the trial court, and conceded, that one of the joint tenants has conveyed an undivided share or one-fourth interest to a stranger to the enterprise by deed of bargain and sale, and that the grantee is now vested with such undivided interest. The defendants contend that this was not a sale of a parcel within the meaning of the contract, and that is the only defense to the action. The courts below have repudiated this construction, and have held that the plaintiff was entitled to recover. The learned judge who gave the opinion at general term very properly remarked that, if the defendants' construction of the contract was permissible, then each joint tenant could successively convey his undivided share, and thus alienate the whole tract, and no one would be liable to the agent for the commissions which he had earned, and which were stipulated to be paid to him on the sale of the land, or any portion of it. Of course, this is what the defendants' position logically leads to. No purchaser of such an interest would be liable, since he never agreed to be, and the land is not bound, since the compensation is not a charge upon the land. The learned counsel for the defendants, evidently appreciating the force of this suggestion, answered it in this language, which is quoted from his brief: ...
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Ladd v. Teichman
...this, Ladd filed the instant suit for the full amount claimed due under the original contract. The trial judge, relying on Johnson v. Sirret, 153 N.Y. 51, 46 N.E. 1035, held that the sale of an easement was not the sale of a 'parcel' under the contract. Further, he held that the contract cr......
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