Darling v. Howe

Decided May 15, 1891

New York Supreme Court · decided 1891-05-15

1. Appeal—Review—Nonsuit on Whole Case. In an action by a real-estate broker to recover commissions upon a sale, wherein plaintiff was nonsuited on the whole case, and an exception taken, it is not necessary, in order to present such exception for review, that he should ask to be allowed to go to the jury upon the question whether his services were rendered gratuitously or in expectation of compensation. 2. Factors and Brokers—Commissions—When Earned. Plaintiff sold certain real estate for defendant under authority from her. son, understanding that she would pay him for his services. Defendant never expressly promised to pay defendant commissions, but she did not deny her liability therefor after the sale was made, the benefit of which she accepted. Held, that it was error to refuse plaintiff permission to go to the jury upon the question whether his services were gratuitous or rendered in expectation of compensation. 8. Same—Evidence. In such case it was error to exclude plaintiff’s testimony that defendant’s son had placed other of defendant’s houses in plaintiff’s hands to be sold in the same way as that in controversy.

Cited by 1 later decisions — most recently March 1927

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1891-05-15

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Daniels, J.,

¶1(concurring.) It appears by the admission of the answer that the plaintiff sold the property for the defendant; and from that fact it may be inferred that it was understood that the defendant would pay him for his services in making the sale. She did not deny the existence of that understanding in the conversation with her,"but claimed that the commissions should be paid by the purchaser; and, when informed that the purchaser was not the party who. could be expected to pay, did not then deny her own liability. This evidence was sufficient to present the question as one of fact whether it was not the intention that she should pay the commissions, and that entitled the plaintiff to have the case submitted to the jury. It was not one, therefore, for the dismissal of the complaint, and the judgment should be reversed, and a new trial ordered, as directed by Mr. Justice Lawrence.