
    Edward H. Emerson, Resp’t, v. Alma L. Coddington, et al., Executors, etc., of Homer Morgan, deceased, App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed March 1, 1888.)
    
    Brokers—When commissions earned.
    A certain broker represented a certain house and lot as broader than it was. The plaintiff entered into a contract to pay a certain sum for said house and lot and to pay the brokerage. The plaintiff carried out the contract, taking a receipt for the brokerage in the name of the owner. In an action by plaintiff to recover back this brokerage from the broker on account of his negligence in making the representation as to the width of the lot. Held, that it was part of the consideration to the owner that the plaintiff should pay the brokerage that the owner would have been liable to pay otherwise. That as long as the contract was binding upon the plaintiff he could not by setting up the mistake prevent an enforcement of the broker’s right to his brokerage.
    Appeal by defendants from judgment entered upon verdict of jury, and from order denying a motion for a new trial.
    
      John Hallock Drake, for app’lts; Frederick W. Hinrichs, for resp’t.
   Sedgwick, J.

The case made upon the trial was, in effect, the following:

The testator, in his lifetime, was a broker in real estate. The plaintiff’s agent called at his office and asked if there was a piece of real estate for sale at a low price.

The testator’s agent named a house and lot, No. 34 Broadway, and said that the lot was thirty-two feet on Broadway. The plaintiff’s agent, believing, that it was so broad, -communicated with the plaintiff and informed him of what had been said as to the breadth. The plaintiff, relying upon the statement, offered for house and lot $127,500.

The testator communicated this offer to Mr. Roof, the owner of the property. He verbally agreed to take this price if it were net.

This meant that the other side were to pay the brokerage of the testator for effecting the sale. A contract was written, and was about to be executed by the plaintiff. It made no reference to the brokerage giving the amount of •consideration to be paid as $127,500. The plaintiff thought this was to be net. The contract was signed. The plaintiff made the first- payment. The testator presented to him the following bill, which the plaintiff paid:

•“Mr. O. M. Roof,
“To Homer Morgan, agent, Dr.
“For' commissions on sale of premises, No. 34 Broadway, for $127,500, at one per cent, to É. H. Emerson, $1,275.
“ Received payment,
“E. H. EMERSON, Esq.”

The plaintiff soon afterward discovered that the house was only twenty-eight feet, and not thirty-four feet in breadth.

On the facts, the contract was binding upon the plaintiff, and has not been set aside or avoided in fact. The testimony tends to show that the plaintiff has accepted a conveyance under the contract. The plaintiff claims that there was a mutual mistake as to the breadth of the house, and asserting that the brokerage was paid to the testator, under that mistake, demands a return of it as money had and received, to the plaintiff’s uses. It is not claimed that the representation was fraudulently made. The plaintiff rests upon its being made negligently.

On the trial, the plaintiff recovered. The case might have such a shape as to require an examination of the question of what was the legal duty of the testator to the plaintiff, at the time the representation was made. The grounds of the decision to be made will not involve this question.

In my opinion, it is not in accordance with the facts, to say that the money was paid by reason of the mistake as to the breadth. Granting that. the. plaintiff would not have made the offer, if he had known that the house was twenty-eight feet in breadth, his mistake as to this led him to make the bargain he chd, and part of that was his agreement to pay the brokerage. It was part of the consideration to the owner, that the plaintiff should pay the brokerage' that the owner would have been liable to pay, otherwise. It was paid to the testator, as broker for the owner, as the bill rendered shows, so .that the plaintiff paid, because he was bound by the contract, and not merely from a mistake. So long as the contract was binding upon the plaintiff, he could not by setting up the mistake, prevent an enforcement by the testator of his right to brokerage.

If he would be bound to pay, he can have no right to recover it back.

The plaintiff’s testimony shows that he understood he was under an obligation to the owner to pay the amount, for he testified that he deemed it to be a part of the consideration.

It will have been seen that the action was not for damages for losing a good bargain. The brokerage which is demanded back, was fairly due, in so far as the plaintiff enjoyed the advantage of the contract.

What has been said refers to exceptions of the defendant which it is not important to specify,

The judgment and order should be reversed, and a new trial had with costs to abide event.

Truax, J., concurs.  