Nudelman v. Haffenberg

<p>Abstract of the Decision.</p> <p>1. Judgment, § 142*—when judgment hy default set aside. Where a party to a suit fails to be present in the trial and a judgment is entered against him, before the court will set aside the same the defendant must show by his affidavit, first, that he has not been negligent, and second, that he has a meritorious defense.</p> <p>2. Judgment, § 132*—when vacation of discretionary with court. The vacation of a judgment is discretionary with the court, and its discretion will be controlled only in case of abuse.</p> <p>3. Judgment, § 160*—when defendant guilty of negligence warranting refusal, to set aside judgment by default. Where a defendant ha^ been notified that the plaintiff would ask that the cause be set for trial and the latter appeared each day for ten days in the regular published trial call, though the defendant received a telephone message on the same day that the notice was received, purporting to come from some one representing counsel for the plaintiff, that he need pay no further attention to the notice, the defendant is guilty of negligence sufficient to justify the trial court in refusing to set aside the judgment on default.</p> <p>4. Principal and agent, § 169*—when agent personally bound by contract. One entering into a contract for the sale of real estate personally and not as agent is thereby bound personally although he was in fact an agent.</p> <p>5. Brokers, § 88*—when evidence sufficient to sustain finding that defendant entered into personal contract with broker. In an action to recover commissions for the sale of real estate, evidence examined and held to sustain a finding that the defendant entered into a contract with a broker for such sale in a mann.er binding the defendant personally and not as agent only.</p> <p>6. Principal and agent, § 169*—when agent having authority to contract personally liable to third person. One undertaking to contract as agent for an individual or corporation but contracting in a manner not binding on his principal is personally liable, and, when sued, cannot exonerate himself from p'ersonal responsibility by showing his authority to bind the one for whom he has undertaken to act.</p> <p>7. Principal and agent, § 169*—when agent liable as vendor for commissions. The rule that even if a purchaser knows that the party selling is a broker, and there is reason to believe that he is selling for some principal, yet if such broker does not bind his principal by the form of the contract made and does bind himself thereby he may be held to the liability of a vendor, held applicable to the liability of an agent for commissions, under a contract with a broker, for the sale of his principal’s real estate.</p>