Opinion
April 25, 1949.
In this action to recover broker's commissions for procuring a lessee for premises of defendants, the jury found for the plaintiff. The Trial Justice reserved decision on a motion made by defendants for a directed verdict and for a dismissal of the complaint on the sole ground that a lease was made, not with the customer claimed to have been produced by plaintiff, but with three persons, including the plaintiff's customer. After the rendition of the verdict, the Trial Justice granted the motion. Plaintiff appeals from the judgment entered on the decision of the motion. Judgment reversed on the law, with costs, defendants' motion to set aside the verdict and to dismiss the complaint denied, the verdict in favor of plaintiff reinstated, and judgment directed to be entered thereon, with costs. Whether there was an agreement made by plaintiff with defendants, and the terms thereof, were matters for the jury. Defendants denied that there was any agreement. Plaintiff swore that it was agreed that he would be paid a commission if "any transaction" was had with his customer, even though the transaction was by the customer directly with defendants. There was no objection to the testimony of the plaintiff on the ground that it was at variance with his complaint. At the end of the whole case the motion to dismiss and for the direction of a verdict was not based upon the ground that plaintiff had failed to establish an agreement. The evidence warranted the jury in finding that there was an agreement, as asserted by plaintiff, that the third parties were brought into the transaction and induced to join in the lease by plaintiff's customer, and that the latter was the most important factor in the transaction. The jury could also say that when the agreement was entered into by plaintiff with defendants, the latter indicated to him that the property would require a syndicate for its proper management and that it was not, therefore, the intention of the parties that a transaction had to be solely with the person brought by plaintiff. In any event, it cannot be said as matter of law that the parties intended that plaintiff's customer alone should be the lessee. ( Rickerson v. Schiffino, N.Y.L.J., July 3, 1931, p. 1780, col. 3 [App. Term, 2d Dept.]; Minks v. Clark, 70 Col. 323.) The customer, Frank Saccente, was bound by the provisions of the lease and was a tenant thereunder. Nolan, P.J., Carswell, Adel, Sneed and MacCrate, JJ., concur.