Gilder v. Davis.

consummate the contract on the part of the lars ($10,000) deposit shall be returned to purchaser for any reason in no way attribut- them. Should the title to said property be able to the broker, the sale falls through, found good and sufficient, but the said Gould nevertheless the broker is entitled to his and his associates fail to organize their comcommissions, for the simple reason that he pany, and to make the one hundred and fifhas performed his contract. If he negoti- teen thousand dollars ($115,000) payment, ates a contract different from that pre- hereinbefore referred to, by or within four scribed by his employer, and the employer months from this date, namely, the subsequently ratifies it, and thus a contract eighth day of May, 1890,-then the [*508 is finally made which is satisfactory to him, said deposit of ten thousand dollars ($10,then the broker has earned his commission. 000) shall be forfeited and paid over to the Nesbitt v. Helser, 49 Mo. 383; Coleman's said Gilder, as the representative of the ownExrs. v. Meade, 13 Bush [Ky.] 358. These ers of the said Kansas City property; but rules apply where the broker has acted in no further liability of any kind whatsoever good faith, and the contract made is either shall be incurred by the said Gould and his signed by the employer himself or is ap-associates over and above the said ten thouproved or ratified by him. The contract for sand dollars ($10,000).” the sale of real estate may provide for the Gould & Co. immediately paid the $10,000 payment of a sum of money as liquidated to the defendants, and on the same day they damages by the party failing to perform, and reported the contract to the plaintiff who at thus the contract may in a certain sense be once approved of and confirmed the same. optional with either party; yet if the em- On the same day the plaintiff addressed a ployer signs or approves the contract, see letter to the defendants in which he stated no reason to doubt that in such a case, al- as follows: "Referring to my letter of conthough in the end the purchaser may not firmation of this date, I beg to express to take a conveyance of the real estate, prefer- you my understanding that there shall be no *507] ring to pay the liquidated damages, commission paid for the sale of the Kansas the broker has earned his commissions. If City property until the final purchase money in such a case the employer wishes to be ex- has been paid over, inasmuch as otherwise empt from the payment of commissions, or I should be really granting a four months' to confine the commissions to the amount of option upon this property for the sum of the liquidated damages paid in lieu of per- $3,750." To that the defendants answered formance, he should stipulate for such ex- by letter, as follows: "Replying to your emption in the contract with his broker. favor of even date, we beg to say that the The commissions are the compensation for condition you make that the $6,250 comthe services of the broker, and when the serv- mission due us on sale of the Kansas City ices stipulated for have been rendered he Slaughtering plant and property shall not should be entitled to his commissions. be paid until the final purchase money is Now, what are the facts of this case? The paid in-is entirely satisfactory and hereby plaintiff and other persons associated with agreed to by us." The purchasers, Gould & him owned certain real estate in the state of Co., did not take the property, and forfeited Kansas which he desired to sell, and he ad- the $10,000. The plaintiff then demanded dressed a letter to the defendants, who were the whole of the $10,000 from the defendreal-estate brokers in the city of New York, ants, and they claimed that they were entiin which he authorized them to negotiate for tled to their commissions on that sum, and the sale of the property for not less than refused to pay him more than $9.500. He $125,000, in cash, stating that he under- accepted that sum without prejudice to the stood that they were to receive a commission rights of either party, and afterwards comon such sale of five per cent. In pursuance menced this action to recover the balance, of that authority the defendants commenced $500. The defendants, in their answer, their efforts to negotiate a sale of the prop-claimed to retain the $500 as their commiserty, and finally entered into a contract for sions on the $10,000. At the trial term it the sale thereof to Gould & Co. for the price was held that they were entitled to the $500, of $125,000, cash, upon the following terms: and the judge directed a verdict in their fa"The terms of the purchase are ten thou- vor dismissing the complaint. Upon appeal sand dollars ($10,000), to be paid to bind by the plaintiff to the General Term, the the transaction, and the remaining one hun-judgment directed at the Special Term was dred and fifteen thousand dollars ($115,000) reversed, and a new trial ordered. to be paid as soon as a company, which Messrs. Gould, McGhee and associates are now forming shall be incorporated and a sufficient amount of the preferred stock of said company subscribed and paid for to meet said payment. Should the said Gilder and While it is not necessary to be determined his associates be unable to give a good and upon this appeal, it is by no means clear sufficient title to the said Kansas City prop- that when the contract was closed between erty, and to turn over the same free of all the plaintiff and Gould & Co., the defendants encumbrances, the said Gould and his asso- were not entitled to their full commissions. ciates shall be relieved of all obligation to They had then negotiated a contract of sale purchase, and the said ten thousand dol-which was satisfactory to the plaintiff and

We are now to determine upon the facts hereinbefore stated, about which there is no dispute, whether or not the *defend- [*509 ants were entitled to commissions as claimed by them.

Gilder v. Davis-Kirk v. Kirk.

370.

carried out or not. Folinsbee v. Sawyer, S Misc. Commissions have not been earned by a broker

when at the time fixed for the parties to meet and enter into a written agreement the purchaser fails to appear. Feiner v. Kobre, 13 Misc. 499.

For note upon employment of real-estate broker, see Blake v. Stump (73 Md. 160), 10 L. R. A. 103.

KIRK v. KIRK.

Partition-sale-order of confirmation.

which was approved and confirmed by him. If there had been no further agreement between the parties as to the commissions, it might be claimed, at least with some plausibility, by the defendants that they were entitled to their commissions as they would have been if they had negotiated a contract containing a stipulation for the payment of liquidated damages in case of failure of performance by either party. And so apparently the plaintiff understood his obligation to them, and, therefore, he exacted an agree ment that they should not have their full commissions unless the property was finally There is no defect in title upon a partition taken and paid for by the purchasers. It sale which will justify the purchaser in refusing is not a fair construction of the two letters to complete his bid, in the fact that at the death of a life tenant of a portion of the property embodying the agreement that the defend-held in trust the trustee is directed to pay over ants were to have no commissions whatever, the share to her issue, including the issue of unless the purchasers took and paid for the any deceased issue, per stirpes, and in case there is no issue of the life tenant living at her death property. It cannot be supposed that the to pay such share to her brothers and sisters parties meant to agree that the plaintiff and to the lawful issue of any deceased brother should receive in consequence of the services or sister per stirpes, and there is a contingency that afterborn children of the life tenant or of of the defendants $10,000 without any pay- her issue or of her brothers and sisters or their ment or allowance for such services. We issue may have an interest, since they are conthink the fair interpretation of the language cluded by the judgment and cannot successfully of the two letters is simply that the full assail the title of a purchaser under it. That no trustee has been appointed for the commissions were not to be paid unless the execution of a trust imposed upon a share of property was finally taken by the purchas- property sold in partition does not create a deers, leaving the defendants to whatever refusing to complete his purchase, where the fect in title which will justify the purchaser in rights they had to commissions upon the property is in possession of a receiver and the $10,000. The letters will bear that con- trust fund has been directed to be brought into court and held for the objects of the trust, struction, and, in furtherance of what seems since the trustee, when appointed, will be the to be fair dealing, they should be so con- successor of the court and bound by its judg strued. We think it is a just view to take ments and directions in respect to the trust esof such a situation where a broker has ob- tate as if he had been a party to the action. An order confirming a sale in partition under tained an optional contract sanctioned by an interlocutory judgment, authorizing the refhis employer, that he should at least receive eree to execute the deed upon the reformation his commissions upon the sum paid and for- chaser with the terms of sale, and providing of his report of sale and compliance by the purfeited by the purchaser. We have found no that the sale shall then be valid and effectual case where the precise point here involved was decided. A case nearest like this is Pierce v. Powell, 57 Ill. 323.

*510] *We are therefore of opinion that
the order of the General Term should be re-
versed and the judgment of the trial term af-
firmed, with costs.
All concur.
Order reversed.

In a note to the principal case in 20 L. R. A. 398, it is said that the right of a broker to commissions on the sum paid and forfeited by a purchaser procured by him, but who fails to complete the contract, is a question that seems to be novel, notwithstanding the multitude of cases in which brokers' commissions on sales are in question, and that the above decision is therefore of much importance as a precedent.

Cited in Hamm v. Weber, 19 Misc. 480, upon the proposition that modification of the original terms by the contracting parties might not impair the agent's right to brokerage if his negotiations continued down to the time the agree ment was actually effected and the consummation was the result of such agency.

The owner of property is liable for the commissions of a broker who has found a purchaser willing to take the property upon the terms named, although before the contract between the parties is reduced to writing the owner recedes from the agreement. Levy v. Ruff, 4 Misc. 180. A broker is entitled to commissions where the minds of the parties meet upon a contract to sell and the terms upon which it is to be made: and his right to compensation is not affected by the nature of the terms, or whether they are

forever, has all the force and effect of a final Judgment, under N. Y. Code Civ. Proc. § 1577, requiring that a final judgment be entered confirming a sale in partition, and directing the of ficer making it to execute the proper convey. ances; and he may be compelled to complete his purchase, although the final judgment terminating the action as between the parties has

not been entered.

APPEAL from order of General Term of

the Supreme Court in the third judicial department, made February 14, 1893, *which affirmed an order of Special [*511 Term overruling the appellants' objections to the title to land purchased by them on a sale under interlocutory judgment herein di recting them to complete their purchase.

This was an action for partition. Upon a motion to compel Michael J. and Daniel F. Mahony, purchasers at a sale under the interlocutory judgment, to complete their purchase, the following facts appeared: Andrew Kirk died in 1857, leaving a will by life, and upon her death provided that two which he gave his property to his wife for commissioners should be appointed by the surrogate, who should divide the estate into as many equal shares as the testator had children, "as well those then living as those that may have died leaving lawful issue then living, and upon such division to set apart and allot to each of my said children then

Kirk v. Kirk.

living one equal share, part, or portion of my said estate, and to the lawful issue of such and every of such deceased child one equal share, part, or portion thereof in the place and stead of his, her, or their deceased pa

rent."

The testator then provided that after such division the commissioners should take and hold the shares allotted to his daughters in trust, to receive the rents and profits for their use during their lives, and upon their deaths to convey the share of "the daughter so deceased, allotted as aforesaid to the law ful issue of such deceased daughter, if any there should be living at her death; the issue of any deceased issue of such daughter to take in all cases per stirpes, and not per capita, and if there be no lawful issue of such deceased daughter then living at her death, then to assign, transfer, pay over, and convey the same to the brothers and sisters of such deceased, and to the lawful issue of any who may be dead, to be had and held by such issue of such deceased daughter or by such brothers and sisters, and the said issue of any who may be dead, unto him, her, or them, and to his, her, or their heirs, executors, or administrators or assigns forever absoutely and without any trust, limitation, or condition whatever, such issue of any deceased brother or sister to take *512] per stirpes, and not *per capita, the part or share which his, her, or their deceased parent would take if living at the decease of such daughter."

Kirk, being the one seventh part of the principal of said estate not accounted for by said William Kirk, are as follows:

"I. The defendant, Isabella K. Pruyn, is entitled to the use, rents, issues, and profits thereof, so long as she shall live."

The persons who would become entitled upon the death of Isabella K. Pruyn to her share in the event of any of the contingencies mentioned in said will were specified, and the judgment then provided: "That so much of the share of the defendant Isabella K. Pruyn as consists of money arising either [*513 from the proceeds of the sale of the real estate hereinabove directed to be sold, or of said sum of $1,700 of principal of the said estate of Andrew Kirk hereinabove referred to, or that shall arise from the sale of, or consist of any of the personal property of said estate or from land damages, shall be depos ited in some savings bank in the city of Albany, under the title of this action, and that the same be brought into court for the use and benefit of said Isabella K. Pruyn during her natural life, or until the appointment of a trustee of said share and interest of said defendant Isabella K. Pruyn."

The premises in question here were sold under the interlocutory judgment, were bid in by said Michael J. and Daniel F. Mahony, who refused to complete their purchase on the ground that no trustee had been appointed for Isabella K. Pruyn under said will.

The referee who made the sale made his report, which was confirmed, but final judg ment had not been entered.

John Whalen, for appellants:

A

trustee should have been appointed to and it is manifest that the interlocutory derepresent the interest in the partition action, cree and the orders confirming the referee's report of sale relied upon by the respondent, are innocent purchaser, as many of their provi wholly ineffectual to protect the rights of an sions are absolutely void. Monarque v. Monar que, 80 N. Y. 395; Mead v. Mitchell, 17 id. 210: Brevoort v. Brevoort, Id. 136.

The testator's widow died before the commencement of the action. No appointment of commissioners, as directed by the will, was made after her death. At that time and when the judgment herein was entered, one daughter of the testator was living, for whom no trustee had been appointed. She and her children and grandchildren and every living descendant of the testator was made a party to the action. The trust aforesaid was held valid by the interlocutory judgment, which directed a division of some of the land and a In a partition sale a purchaser cannot be sale of the premises in question here, deter- compelled to take title until the final judgment mined the rights, interests, and shares of the is entered; a sale in partition can be confirmed several parties, and provided as to the testa-only by a final judgment. Code Civ. Pro. $8 1577, 1595; Jordan v. Poillon, 77 N. Y. 518; tor's daughter as follows: Carter v. Carter, 133 id. 155.

"Seventh. The one-seventh part thereof is the share or portion of the same which was devised and bequeathed in and by the last will and testament of Andrew Kirk, deceased, for the use and benefit of his daughter, Isabella K. Pruyn, during the term of her natural life, the same to be held in trust for her during life, with remainder over to her issue if any, and failing issue to her brothers and sisters then living and the issue of any deceased brother or sister.

"That the parties entitled to so much of said one seventh as consists of real estate or personal estate or the proceeds of the sale of real estate belonging to the estate of Andrew Kirk, deceased, including also in that amount the sum of $1,700 of principal of said estate, charged in the report of said referee upon the share and interest of the plaintiff William

Kirk v. Kirk.

ment as required by section 1577 of the Code. This is untenable. Code Civ. Pro. $8 1576, 1577; Blakeley v. Calder, 15 N. Y. 617; Cromwell v. Hull, 97 id. 209; Woodhull v. Little, 102 id. 165; Reed v. Reed, 107 id. 545.

W. Frothingham, for respondents:

There was no valid trust created after the death of testator's widow. Unless the title to the daughter's share vested in her under the sixth clause there was a suspension of the power of alienation after the death of the widow, pending the cumbersome and impracticable proceedings for the appointment and qualification of the commissioners, and up to the time when they were to take and hold the title to the daughter's share. Bailey v. Bailey, 28 Hun, 603; Schettler v. Smith, 41 N. Y. 328.

the correct rule very clearly enunciated in the opinion of Ch. J. Earl.

been made parties, as well as all her brothers and sisters, and the descendants in being, both of the living and the deceased brothers and sisters. It thus appears that every living person who has any interest, either vested or contingent, in this share, is a party to the action, and the interlocutory judgment provides that the net proceeds of the sale shall be brought into court and deposited in a sav ings bank, and there remain during Mrs. Pruyn's lifetime, or until the appointment of a trustee. It is true that there is the contingency that afterborn children of Mrs. Pruyn, or of her issue, or of her brothers and sisters, or their issue, may have an interest in this part of the property, *but it [*516 is now the settled law in this state, that unMaynard, J. We fail to find any defects der the circumstances here shown to exist in the title which the purchaser will acquire they are concluded by this judgment, and upon the partition sale, sufficient to relieve cannot successfully assail the title of a purhim from his obligation to complete the purchaser under it. Whatever doubt there may chase and pay the amount of his bid. It may have been upon this point has been put to be assumed that the will of Andrew Kirk rest and the further discussion of the quescreated a valid express trust in one seventh tion foreclosed by the recent decision of this of his real property for the benefit of his court in Kent v. Church of St. Michael, 136 daughter, Mrs. Pruyn, and her heirs; but N. Y. 10, 18 L. R. A. 331, 32 Am. St. Rep. the appointment of a trustee, and his pres-693, where the authorities are reviewed and ence as a party in the partition suit, was not essential to give the court complete jurisdiction of the action, and invest it with author- The referee has made report of sale, which ity to render a judgment effectually dispos- has been confirmed, but final judgment has ing of the interests of all parties in the lands not been entered, and the purchaser contends which were the subject of the common ten- that he cannot be compelled to complete his ancy. The Supreme Court has inherent purchase until this had been done. By the *515] *power to execute a trust, and in the interlocutory judgment the referee is authorabsence of a trustee it may and will take up-ized to execute the deed upon the confirmaon itself its execution. Rogers v. Rogers, 111 N. Y. 228; Greenland v. Waddell, 116 N. Y. 242, 15 Am. St. Rep. 400. It appears from the record that it has undertaken the discharge of this duty in the present case. The property is in the possession of a receiver, who is an officer of the court. It has directed the trust fund to be brought into court and to be held for the precise objects for which the trust was created. The trustee, when ap pointed, will be the successor of the court in the administration of the trust, and will be bound by its judgments and directions now given with respect to the trust estate, to the same extent as if he had been a party to the action. The further objection is made that persons not in esse may have an interest in the trust estate, and that they will not be concluded by the judgment under which this sale is made. By the provisions of the will, Mrs. Pruyn was entitled to the income of the trust estate during life, and at her death the trustee was directed to pay over the share, so held in trust, to her issue then living, including the issue of any deceased issue, who were to take per stirpes, and not per capita, and if there was no issue of the daughter living at her death the trustee was directed to pay over such share to her brothers and sisters, and to the lawful issue of any deceased brother or sister, per stirpes, and not per capita. Mrs. Pruyn is a party defendant, and her children and grandchildren, comprising all her descendants now living, have also

tion of his report of sale, upon compliance by the purchaser with the terms of sale, and it is provided that the sale shall then be valid and effectual forever. The purchaser is not concerned in the subsequent proceedings in the action. Upon the delivery of the deed his title becomes perfect, and rests upon the interlocutory judgment and the order confirming the referee's report. As to him, the order of confirmation has all the force and effect of a final judgment under section 1577. Woodhull v. Little et al., 102 N. Y. 165.

In the present case actual partition has been directed of a large portion of the real property which is the subject of the action, and the proceedings cannot be finally terminated as to that part of the cause of action, until the report of the commissioners has been made, but the entry of judgment upon such report will not and cannot disturb the rights which have been acquired and have become vested under the sale and the proceedings specially relating thereto.

The order must be affirmed, with costs.
All concur.
Order affirmed.

407.

Distinguished in Smith v. Secor, 157 N. Y. Cited in Gray v. Smith, 76 Fed. Rep. 532, upon the barring by judgment, of contingent estates. See Toole v. Toole, 112 N. Y. 333, 2 L. R. A.

465, with note upon the rights of a purchaser at partition sale.

People v. Laurence.

transformed to the barn of the said Lockport Street Railroad Company in Lockport, with all possible speed, and ready and fit to be used upon the tracks of the said Lockport Street Railroad Company before the first of January, 1892, and the said Lockport Street One who obtains possession of street cars Railroad Company, then and there believing from the owner for the purpose of so transforming them that they may be run by electricity the said false pretenses and representations and returning them to the owner, by means of so made as aforesaid by the said Charles H. false representations, with the intent to ap- Laurence, and being deceived thereby, was propriate them to his own use, and who subsequently converts and appropriates them to his induced by reason of the false pretenses and own use, is guilty of larceny under N. Y. Pen. representations so made as aforesaid to deCode, § 528, including in the offense of larceny, liver, and did then and there deliver, to the embezzlement, obtaining property by false pre-said Charles H. Laurence the said two horse tenses, and felonious breach of trust.