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Mayer v. Penfield

Supreme Court of New York, Appellate Division

April 12, 1912

OSCAR I. MAYER, Respondent,
v.
WILLIAM W. PENFIELD, Appellant.

APPEAL by the defendant, William W. Penfield, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of April, 1911, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 27th day of May, 1910, upon the verdict of a jury, and also affirming an order of said City Court denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

Henry C. Henderson, for the appellant.

Frank A. Bennett, for the respondent.

INGRAHAM, P. J.:

This action was to recover the sum of $2,000 for work, labor and services done and performed by the plaintiff at the instance of the defendant during the month of November, 1907, and prior thereto in procuring the sale for the defendant and closing title thereof of certain real estate at Wakefield in the city of New York to and with the New York State Realty and

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Terminal Company. The complaint alleges that the agreed price and value of the work, labor and services was $3,000, of which the plaintiff has been paid the sum of $1,000, and judgment is demanded for the balance. There was a question presented on the trial as to whether the plaintiff had been paid $300 in addition to the sum of $1,000, and the jury apparently allowed the defendant for the payment of that sum, rendering a verdict to the plaintiff of $1,700 with interest. From that judgment the defendant appeals, his principal contention being that the contract upon which the cause of action was based was without consideration and, therefore, the plaintiff could not enforce it.

From the plaintiff's testimony it appeared that he had been employed by the defendant to effect the sale of certain real property. Some time after this employment to July, 1907, the plaintiff submitted this property to the New York State Realty and Terminal Company, which appears to have been a corporation organized for the purpose of acquiring property for the New York Central Railroad Company, and that corporation then entered into negotiations with the plaintiff for its purchase. These went on until November when a sale of the property was arranged. On November 16, 1907, the defendant executed and delivered to plaintiff an instrument by which the defendant agreed to pay the plaintiff 'One thousand dollars in full of services rendered in the disposition of my property at Wakefield and Mt. Vernon to the N.Y. Central [State] Realty & Terminal Co.; as per agreement of November 12th, 1907.' When this agreement was entered into an agreement between the defendant and the New York State Realty and Terminal Company dated on that day had been drawn up and submitted to the purchaser, by which the defendant agreed to sell certain real property therein described for $63,142.50, payable $2,500 on the signing of the contract and $60,642.50 at the time of the delivery of the deed on the 12th day of February, 1908. On November 22, 1907, Mr. Ira A. Place, one of the vice-presidents of the New York Central Railroad Company, wrote a letter to the general land and tax agent of the company, who appeared to be in charge of the New York State Realty and Terminal Company, in which he returned the proposed contract

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between the realty and terminal company and the defendant for the purchase of this property for $63,142.50, and stating that the execution of this contract had been authorized by the board of directors.

The plaintiff testified that this contract of sale, although dated the 12th of November, 1907, was not actually signed until the 25th of November, 1907, but on the twenty-second the sale was completed, the purchaser's officers had been authorized to sign the contract, and nothing remained to be done except its formal execution and the payment of the amount agreed to be paid on its execution. The contract was executed on November twenty-fifth and the first payment of $2,500 made, and subsequent payments were made on December 15, 1907, of $30,000; February 26, 1908, of $15,000, and March 11, 1908, of $10,000. The plaintiff also testified that on November 12, 1907, after this contract was prepared and submitted to the railroad company, the parties to this action had a dispute about the plaintiff's compensation, when defendant finally offered the plaintiff $1,000 for his services, which plaintiff accepted and asked for a writing that the defendant would give him $1,000, and the writing of November 16, 1907, was given by the defendant to the plaintiff to carry out that agreement. The plaintiff also testified that he saw the letter of Mr. Place dated the 22d of November, 1907, on the twenty-third of November, about one o'clock on that day.

The fact, therefore, is established that on the 12th of November, 1907, a contract had been prepared for the sale of the property at a price acceptable to the defendant; that the same had been substantially accepted by the purchaser but had not been formally executed; that on the 12th or 16th of November, 1907, the plaintiff and defendant had come to an agreement by which the plaintiff's compensation for his services was to be $1,000 for procuring a purchaser for the property as per this agreement, dated the 12th of November, 1907; and that on the 22d of November, 1907, the purchaser had definitely accepted the contract and its officers had been actually authorized to execute it. Nothing remained, therefore, except the formal execution of the contract and the payment of the sum to be paid upon its execution. The plaintiff testified that the defendant on

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the twenty-third of November requested him to go to the New York Central Railroad Company and see its officers, and, to induce him to go, wrote the letter upon which this claim is based. In that letter the defendant stated to the plaintiff: 'If you will close the matter on Monday next which was to have been closed on Nov. 12th, 1907, and secure the first payment of ...


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