Vanderschoot v. Christiana , 10 A.D.2d 188 ( 1960 )

Bergan, J.

On March 5, 1955 defendants Christiana, who were the owners of a dwelling in Johnson City, signed a real estate broker’s agreement with Ron Don Realty. This provided that any member of the Broome County Real Estate Board of Relators “ may act as sub-agents in procuring” a purchaser ‘ ‘ in accordance with this agreement ’ ’; and in event that a sale should be made through such a subagent “ all of the terms of this agreement shall apply to such transaction.”

Plaintiff is a broker and member of the Broome Real Estate Board. The listing terminated in three months from its date, that is, June 5, but the agreement provided: “ In case the said property shall be sold or exchanged by the owner or through any other agent, to a person with whom the broker has negotiated, or whose name has been given by him to the owner during the term of the listing or within six (6) months after the listing has terminated, the broker shall be entitled to full commissions.”

On August 19, 1955 plaintiff brought to the Christiana home the defendants Sullivan and introduced them to defendant Gertrude Christiana. The Sullivans were shown through the house; there is a dispute about whether Mrs. Christiana stated in effect she would not then pay any real estate commissions and would not then recognize any broker; or whether, as plaintiff contends, being advised that plaintiff was a broker, she nevertheless showed the Sullivans through the house without objections.

The Sullivans shortly thereafter purchased the property and plaintiff sues for commissions. The court granted defendants’ motion at the end of the proof and dismissed the complaint with the statement that there was ‘ ‘ not sufficient proof in this case to establish a contract of employment between the plaintiff and the defendant * * * either express or implied”.

By express terms of the contract, plaintiff as a member of the board was appointed a subagent for the contracting broker and in respect of such a subagent’s activity in procuring a purchaser it was provided expressly that “ all the terms ” of the contract applied.

The listing terminated June 5, but within six months “ thereafter ”, if the broker “ negotiated ” with a purchaser or gave a purchaser’s name to the owner, and the property was sold to such a person, the broker, and hence this plaintiff, would be entitled to commissions.

Such a contract could not be defeated by a mere protest or disavowal of responsibility for commissions by the owners if the broker brought a prospective purchaser to the owners within six months ‘ ‘ after the listing has terminated ’ ’. If the owners sold to such a prospective purchaser the commissions would be earned; if the owners did not then want to pay commissions they could avoid liability by not selling to such a prospect.

The parties might, of course, expressly waive commissions that would otherwise be due under the agreement; that is, if the owners said that they would show the house on condition that the broker would not take commissions and the broker agreed to this proposal; but no such theory of waiver is pleaded in the answer and the proof suggests little to support it.

We are of opinion the complaint should not have been dismissed on the theory there was no “ contract of employment ”. Such a contract of employment exists by virtue of the terms of the written agreement as to all members of the board; and liability may be incurred if the owner accepts the benefits of services of any such members coming within the terms of the contract which result in an actual sale of the property.

Nor is there any ambiguity about what the rights of the owner and of the original broker, or members of the realty board coming within the contract’s definition of subbrokers, are for the six months’ period after the listing terminates. The rest of the contract casts no doubt about these terms and is quite consistent with them.

During the three months’ listing period the named broker was entitled to commission whether this broker sold the property ; or whether any other broker sold it; or whether the owner sold it. But when the three months’ period ended, the contract provided in plain words that if the property be sold to a person whose name was given to the owner by the broker within the listing period or six months “ after the listing has terminated ” commission shall be earned.

These words are not obscure; and they are not ambiguous. They cover a situation in which the buyer’s name is given by the broker during the exclusive agency period but no “ sale ” is made ‘ ‘ during the exclusive agency period ’ ’ but is made later; and they cover a six-month period thereafter when the property is sold to a person whose name -is given by the broker to the owner.

This is entirely consistent with the rights which are separately and expressly provided for in event of a sale actually made during the exclusive listing period. They provide for an additional and a different situation, that is, a name given to the owner by the broker during a total period of nine months and actually acted on to the owner’s benefit by a sale after, as well as during, the exclusive listing period. This does not provide indefinite rights. It is very specific about the total period in which rights and liabilities under it may be incurred.

If the contract is not ambiguous the testimony of what the broker said to the owner about his interpretation of its terms would be irrelevant as far as parties beneficially interested in the contract are concerned, and. the nonsuit must assume the most favorable aspect of plaintiff’s proof.

No cause of action, however, has been demonstrated against the purchasers, defendants Sullivan.

The judgment should be modified on the law and the facts by reversing so much thereof as dismisses the complaint as to defendants Christiana, and a new trial ordered as to such defendants, with costs to appellant to abide the event; and the judgment in favor of defendants Sullivan should be affirmed, with costs to such defendants against plaintiff.