The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-08-15

NIX Before Judge DAILY.
ff0setM u. Pierce against ~ n.Ucnn H. Hnap.
drd.-CohMiSsI0Ns FOR bELLIN0 REAL EJrArs An
bRokEK-Ths was action 10 recover com-
mission one per cent for eectiny the sale " eixha
oss OF ground comprising the from the essterty
snoe OF the Sixth avenue, between Tairtyfourth ac1
ihrtJ hi'h streets, for $40 900.
me Iacts are as follows:-ln July, 1852, Mr. Brad
nary M johnson applied to the plaintiff to ascertatn
no o"he1 the ios In question: stating his desire -
Puionase Tour OF the lots on the corner Of Thirty
fourth street, and Immediately adjoining The pial-
TN having ascertaned that the defendant wned IL
lots, on the 3lst Of July wrote to the defendars -
guessing To know whether he would sell four o1 ~
lots, and on what terms and conditiopss and whesl,
ne would allow commission providing sale coual
be effected.
On the 9th of August the defendant wrote 70 ~
plaintiff Offering to sell The whole plot Of eight Ioa
Tor $40 900, or the four lots nearest Thirty fours
street for 500 and promising to pay oommis-
sion OF one per cent in case Of sale. On the l8sh
OF August the plaintiff wrote to the defsndans -
ne ne mad been offered $4,000 for the four lots noxt
wished them for immediate Improvement 81 IN.
2lst Mr. Howard wrote to the plaintiff declining ~
oer OF but offering to sell them for sal 900
as the erection of good buildings by the purchsNe
would enhance the value of the remaining lots. a.
the 2sth OF August Mr. Pierce again wrote to the de-
PENDANT that the party wishing to purchase had e.
s sh MN 70 ascertain whether, in consequence e
the probable expense OF removing the rock ON tho
lots, the defendant would abate $500 ia the price
and stating that II he would do so the bargain m,gR
Howard replied to this letter that he not vnly oouA
not accept the $40 800 but had concluded 30 with,
draw the offer OF the four lots $2l 600 He agsia
offered to sell the whole tor $40 900, and stated Ut
he expected to be in New York in few days.
In the early part of September Mr. Howard. hay
ing returned to this city called at the Office OF Mr.
Pierce and saw Piorce's clerk, to whom he gave hn
address, aud by whom he was informed that tAe
Messrs johnson were the parties who had proposed
TO purchase. He also had one or more interview
with Mr.: Pierce, when meeting between Howard
and johnson, at Pierce's office, was ARRANGED
for the afternoon Of subsequent day. OF
son; but. on the morning Of the day aP-
pointed, Mr. Howard apprised Mr.. Pierce that he hsA
made up his mind to reject Johnsons offer for ths
purchase OF the four lots and would not therefore.
meet him as appointed. Mr.. johnson called ut tn
Office OF the plaintiff, at the time appointed for to
meeting with Howard, and was then Informed ~
offer OF the four lots separately and would only sed
the whole parcel. He advised johnson to take the
eight lots, and in reference to Johnsons proposal T.
purchase four remarked that he had done Ill ha
could TO bring about arran yement and that John
son had better Call on Howard personally, and see
what he could do.
few days afterwards johnson called on Xr.
Homer Morgan, another real estate broker, with
whom lie was acquainted, and inquired whether he
knew Mr.. Howard Being vered in the adarms-
tive, he told Morgan that he had been negotiating.
through Pierce, for portion of the lots belonging .
Howard, but that the negotiation had been br0ksa
of by Howad's declining the offer, and he requested
Morgan to introduce him to MI. Howard.
An Introduction was accordingly given. Howard
declined to sell the four lots, but offered the eghk
upon the terms before stated by Pierce and tho nax
day, which was on the 18th of September, . con-
Howard and johnson, for the sale Of the eight lota
for the sum Of $4,000 johnson testified that b
was not induced to make the purchase in conse-
quence of anything which Pierce had said, but wss
solely influenced by the assurance OF Morgan that -
could sell the four upper lots for half the cost Of IL
whole, leaving TO johnson the four he desired. ~
the cost of $40, 900.
On learning that the bargain had been oonsuaa-
mated, Pierce claimed from Howard the payment =
his commissions, which was refused; and Johnsaa,
having failed to find purchaser, through The
agency Of Morgan for the four lots he did not vish
to keep, sold them back to Howard, upon terms not
disclosed in the evidence. About the time Of tho
commencement OF this suit, Howard and Johns0a
got together, and, for some unexplained reasoo
agreed to cancel the contract the four remain
/ z lots, also.
His Honor Judge DAILY charged the jury that n.
up to certain time, the plaintiff was the middle
man between the parties, and had communicated 70
each the name OF the other, that 1t Wa3 by his
introduction, or through his instrumentslity -
agency that they came together, they could NOT, h1
any act OF their own. or through the lterveaton r
another broker, withdraw the matter from the hsndD
of the plaintiff in such way TO deprive him of hs
commissions. That it the jury believed that the de-
PENDANT had employed the plaintiff as bis btvxee.
and authorised him to negotiate sale of the loes
ard that the plaintiff bad found the purchaser il did
not matter whether the negot alton Was coasam-
mated by the plaintiff or by the parties themselves.
without the presence Of the plaintiff and could not
affect his right to compensation.
That valid contract for the sale of the lots By
the defendant aud tue purchase OF them by johnson.
having teen entered into by them the only question
e. We jury was, whether the plaintiff I'd rendered
tie service which resulted in the parties coming To-
se'her aad making the contract, and with ,ut
Wtica they. would not have been brought to-
gsiter. II be cid, his claim TO compensation b
cane perfect, on the execution of the contract be-
tween tie defendant and a RESPONSE ole purchaser.
thus procured by him, ana could not be varied BIZ
any subsequent agree nent between the vender and
purchaser, canceng or varying the original con-
tract
His Honor mex proceeded to comment upon the
evidence, and remarked in conclusion, that tho lav
wisely left to parties the right of making their own
contracts, and of regulating the compensation to be
paid for services such the plaintiff claimed -
have rendered; and if the jury should come to tho
conclusion, from the testimony before them that tho
plaintiff had rendered those services aud was enti-
tied to their verdict, the amount OF taer verdict
must be regulated by the contract between the
plaintiff and defendant, fixing the amount OF cou-
pepsation in case Of sale.
The Jury found verdict for the plaintiff for
$500 the tull amount claimed.