
    Harris Meltzer and Samuel Jaffe, Respondents, v. Herman Straus, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Brokers — Compensation: Agreements as to compensation — Payment when title is passed: Actions — Instructions. .
    Where' a contract for the sale and purchase of real estate has 'been made, the broker, who upon employment by the owner procured a purchaser, is entitled to recover his commissions.
    A provision in the agreement with the broker that his commissions should be paid on the “ closing of title ” merely fixed the time when his commission should be payable, and the actual closing of the title was not a condition precedent to his right to . recover his commissions.
    In an action to recover commissions it is not error to refuse to charge that it was the duty of the broker to bring a purchaser whose mind and that of the seller would meet all the terms of the contract, where the court has already charged that, unless the minds of the purchaser and the seller had met upon all the material terms of the contract, the plaintiff had not earned his commissions and could not recover.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered upon the verdict of a jury, in favor of the plaintiffs, and from an order denying the defendant’s motion for á new trial.
    Rose & Putzel (Benjamin G. Paskus, of counsel), for appellant.
    Jacob Manheim and Harry A. Gordon, for respondents.
   Giegerich, J.

The action is to recover broker’s commissions upon the sale of real property situate on the southerly side of 136th street, 100 feet east of Lenox avenue, borough of Manhattan.

In April, 1905, the defendant was the owner of four adjoining houses then in course of construction. The plaintiffs, who were real estate brokers, called upon the defendant and asked his price for the property. It was given as $185,000. The plaintiffs then procured an offer of $180,000 from Grossman & Passon and communicated the offer to the defendant, but it was not accepted. Later, the brokers brought the same persons who had theretofore made said offer to the defendant’s residence, where the proposed sale was discussed at length between the brokers, the buyers, the defendant and his son; and the price of $181,500 was finally agreed upon, with a brokerage of $500 to the plaintiffs. The plaintiffs testified that the terms of the sale and the arrangements as to first and second mortgages were fully discussed, and that it was agreed that the defendant should place first mortgages for $30,000 on each building at four and one-half or five per cent, to run for three to five years and should take purchase money mortgages for $7,500 on each building at six per cent, per annum to run for one year. This testimony was corroborated by the witnesses Grossman and Passon. The defendant, however, testified that nothing was said about the rate of interest at which the mortgages were to run; but the defendant’s son, called as a witness in his father’s behalf, testified that, when the buyers brought up the question of interest, “ we told them we could not tell what the rate of interest would be until we got to our attorneys’ office and found out what the condition of the market was.” There was also testimony that title was to pass on receipt of the certificates of the building and tenement house departments on fifteen days’ notice to the purchasers.

The purchasers, at the interview just referred to, deposited $1,000' on account of the purchase price; and a so-called binder was drawn up by the defendant’s son in which the receipt of the $1,000 was acknowledged “ as a binder for the sale ” of the property which was described and the purchase price of which was stated. Some provisions were also embodied in the binder ” as to mortgages, but the retes- of interest'which they were to bear were not stated. The binder further provided: “Contract to be made on Tuesday, April 18, 1906, at 3 o’clock P. M. at the office of Rose and Putzel, 128 Broadway, N. Y. City, Commission to be paid to S. Jaffe & Harris Meltzer on closing of title.”

The parties attended at the office of the defendant’s attorneys on the day fixed, but the proposed contract was not signed, .owing to the failure of the parties to agree upon the rate of interest which the first mortgages were to bear, the defendant requiring that the contract provide for five and one-half per cent, while the purchasers refused to assent to more than five per cent. The plaintiffs both testified that the defendant, at that time, admitted having previously agreed that the rate was to be not over five per cent.; but they testified that the defendant’s -attorney explained that the Mortgage Tax Law would probably shortly be enacted and refused to draw the contract at less than five and one-half per cent.; and their testimony is substantially corroborated by the testimony of the witnesses Grossman and Passon.

On the advice of their attorneys, Grossman & Passon accepted the return of the $1,000- deposited by them; and the proposed sale fell through.

• The court left the case to the jury. Several exceptions were taken to the charge and to refusals to charge, which will be considered in the order in which they have been presented.

The appellant contends, first, that the so-called binder shows conclusively that no meeting of the minds of the parties upon the terms of the proposed sale was effected and that, consequently, no brokerage was earned.

The binder was introduced in evidence, but was so mutilated that its precise terms cannot be made out; and they were not supplied by oral testimony. But it was, admittedly, not a complete agreement; and the question was whether terms were agreed upon orally that were not incorporated in the writing. The plaintiff’s witnesses testified that they were; and, if the jury believed them, there was sufficient evidence to establish an agreement between the parties upon all essential, points.

The jury were, therefore, at liberty to find that the plaintiffs had earned their commission, unless there is something in the appellant’s further point that the written agreement, by its express terms, provided that brokerage was only to be paid if title was actually closed — a point raised by the motion to dismiss as well as by an exception to the charge.

The agreement, as already stated, contained the clause: “ Commission to be paid to S. Jafle & Harris Meltzer on dosing of title.”

I think, however, that this provision merely fixed the time when the brokerage should be payable if the contract was performed, and that the actual closing of title was not a condition precedent to recovery of the brokerage. Morgan v. Calvert, 126 App. Div. 327. The case of Fittichauer v. Van Wyck, 92 N. Y. Supp. 241, relied upon by the appellant, does not apply, because there the broker’s commissions were not to be paid until and unless title passed. Haase v. Schneider, 112 App. Div. 336; Peace v. Ross, 123 id. 611, and Shapiro v. Nadler, 51 Misc. Rep. 13, cited by the appellant, are inapplicable, for the reason that, in those cases, the parties had not agreed upon the terms of the contract; while, in the present case, there was sufficient evidence to warrant the jury in finding that the parties fully reached an agreement as to terms.

The only further exception relied on is to the refusal of the court to charge “ that it is the duty of the brokers to bring a purchaser whose mind and that of the seller will meet all the material terms of the contract, and that the rate of the interest to be paid upon the mortgages would be a material term of the contract.”

If this proposition can be taken to mean that the minds of the parties should meet one another upon the terms of the contract, then such instruction was substantially given by the court immediately after such refusal, as will be seen from the following excerpt from the record, viz.: “Defendant’s counsel: I take an exception. I ask your Honor to charge that, unless the minds of the purchaser and seller did meet upon all the material terms of the contract, the broker has not earned his commission and cannot recover. The Court: Hnless the parties met upon all the terms of the contract as given by the party himself to the broker, he cannot recover; otherwise refused.”

Such instruction was in harmony with what had theretofore been charged, that it was for the jury to say what the terms of the agreement were upon which the defendant would sell the property; that the principal dispute was whether or not, at the time the binder was signed, anything was said about the rate of interest on the first mortgages; and that, after having determined what the terms of the proposed purchase were, it was for the jury to decide whether or not the defendant capriciously refused to enter into a written contract for the sale of the property.

When the request first above noted was made, the court had already charged that the plaintiffs could not recover without showing, by a preponderance of proof, that their version of the transaction was correct, and had gone over the conflicting claims of the parties, especially in regard to the rate of interest, at length, the difference on that point appearing to be the sole cause of the noncompletion of the alleged contract.

The request was, therefore, but a repetition of what the court had already charged, and hence the exception to a refusal to charge as requested is unavailing. Walsh v. Kelly, 40 N. Y. 556; Pakalinsky v. N. Y. C. & H. R. R. R. Co., 18 N. Y. Wkly. Dig. 44.

As was said by the court in Walsh v. Kelly, supra, at page 559: The judge is not obliged, in his charge, to adopt the language of counsel, but is at liberty to employ his own, and is not guilty of the imputation of error if he charges the request made upon him substantially correct.”

It results from these views that the judgment and order appealed from should be affirmed, with costs.

Hendrick and Ford, JJ., concur.

Judgment and order affirmed, with costs.  