Kaelin v. Warner
| Citation | 318 N.Y.S.2d 294,267 N.E.2d 86,27 N.Y.2d 352 |
| Parties | , 267 N.E.2d 86 James A. KAELIN, Respondent, v. Wilmot H. WARNER, et al., Appellants. |
| Decision Date | 13 January 1971 |
| Court | New York Court of Appeals |
J. Leo Saxstien, Riverhead, for appellants.
Edgar Hills, Riverhead, for respondent.
In this action to recover real estate brokerage commissions, the courts below held in favor of the plaintiff. We reach a different conclusion.
The defendants, who owned a farm located in the Town of Riverhead, Long Island, listed it with the plaintiff, a licensed real estate broker, for sale at a price of $100,000--later increased to $100,500--with terms to be arranged. The plaintiff, having located a Mrs. Appleby as a possible purchaser, notified the defendants of his prospect and was told to contact their attorney so that he might draw up the proposed terms of sale. That lawyer thereafter prepared a contract setting forth the terms which his clients desired and mailed it to Mrs. Appleby on July 3, 1965. However, Mrs. Appleby, not content with this agreement, insisted upon the inclusion of additional terms, including (1) release clauses, (2) the privilege of prepayment after one year instead of five years, (3) a guarantee as to acreage and reduction in price if there were less acreage, (4) delayed times of payment and (5) a later closing date. Then, following discussions between counsel representing both parties, it was arranged that Mrs. Appleby's lawyer would prepare two riders reflecting the suggested changes, attach them to the contract and forward the agreement in its modified form to his client for her signature. The document was then to be submitted to the sellers for their approval. When, some three weeks later, the contract, containing the modifications required by Mrs. Appleby, was submitted to the defendants, they refused to go through with the deal. The property was later sold to another purchaser who had been produced by another broker during the time Mrs. Appleby's counterproposal was being reduced to writing.
We deem it settled that (Matter of Altz' Will, 274 App.Div. 894, 82 N.Y.S.2d 629, affd. 300 N.Y. 607, 90 N.E.2d 65; Sibbald v. Bethlehem Iron Co., 83 N.Y. 378, 382; see, also, Thompson & Co. v. New Madison Sq. Garden Corp., 225 App.Div. 521, 522, 233 N.Y.S. 608, 609--610; Arnold v. Schmeidler, 144 App.Div. 420, 129 N.Y.S. 408; Haase v. Schneider, 112 App.Div. 336, 98 N.Y.S. 587; Pearsen v. Lemken, 34 Misc.2d 636, 640, 229 N.Y.S.2d 589, 593.) The fact that, in the case before us, the brokerage agreement obligated the plaintiff to procure a purchaser for $100,000, 'with terms to be arranged,' in no way alters this principle. Where an owner merely specifies the purchase price of property, without fixing the other terms of sale, commissions are not earned until and unless the person produced by the broker reaches an agreement with the owner not only as to price but also as to the terms upon which the sale is to be made. (See, e.g., Arnold v. Schmeidler, 144 App.Div. 420, 427, 129 N.Y.S.2d 408, 413, Supra; House v. Hornburg, 267 App.Div. 557, 561, 47 N.Y.S.2d 341, 344--345; see, also, Restatement, Second Agency, § 445, comment D, p. 347; Biskind and Barasch, Law of Real Estate Brokers (1969), § 67.01, pp. 165--166.) The Arnold case (144 App.Div. 420, 129 N.Y.S. 408, Supra) is illuminating. The court there held that, where the owner places his property for sale with a broker 'and may * * * have set an asking price * * * but does not fix the terms of the transaction leaving them to be determined thereafter. * * * the broker's commissions are not earned until the customer produced by him reaches an agreement with the owner upon the price and terms upon which a sale can be made' (p. 427, 129 N.Y.S. p. 413). 1
Since Mrs. Appleby never reached an agreement with the defendants concerning the essential terms of the transaction, the plaintiff did not earn his...
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Weniger v. Union Center Plaza Associates
...239 N.E.2d at p. 379) and in the latter situation, there would be no commission if terms were not arranged (see Kaelin v. Warner, 27 N. Y.2d 352, 318 N.Y.S.2d 294, 267 N.E 2d 86, decided Jan. 13, 1971). It should be observed, however, that even where the broker and seller expressly provide ......
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...Lane–Real Estate Dep't Store, Inc. v. Lawlet Corp. , 28 N.Y.2d 36, 319 N.Y.S.2d 836, 268 N.E.2d 635 [1971], Kaelin v. Warner , 27 N.Y.2d 352, 318 N.Y.S.2d 294, 267 N.E.2d 86 [1971], Nesbitt v. Penalver , 40 A.D.3d 596, 835 N.Y.S.2d 426 [2nd Dept.2007], Greene v. Hellman , 51 N.Y.2d 197, 433......
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