684





RECORD   AND   GUIDE





May 19, 1917





The personnel of the Committee on
Coal   Production   is   as   follows:

Francis S. Peabody, chairman; George
W. Reed, secretary; E. J. Berwind, New
York, representing Central Pennsyl¬
vania, Maryland and Low Volatile fields
of West Virginia; W. W. Keefer, Pitts¬
burgh, Pa., representing Western Penn¬
sylvania, Ohio and Michigan; Van H.
Manning, Washington, D. C, director.
United .States Bureau of Mines; C. M.
Moderwell, Chicago, 111., representing
Illinois, Indiana and Western Kentucky;
E. L. Pierce, Syracuse, N. Y., represent¬
ing ' coke industry; Erskine Ramsey,
Rirmingham, .Ala., representing Ala¬
bama, Tennessee, Georgia and North
Carolina;  George Otis Smith, Washing¬





ton, D. C, director. United States Geo¬
logical Survey; James J. Storrow, Bos¬
ton, Mass., representing New England;
H, N. Taylor, Kansas City, Mo., rep¬
resenting .Arkansas, Iowa, Kansas, Mis¬
souri, Oklahoma and Texas; S. D. War-
riner, Philadelphia, Pa., representing
anthracite coal industry; J. F. Welborn,
Llenver, Colo., representing Colorado,
Montana, New Mexico, North Dakota,
Oregon, L'tah, Washington and Wyo¬
ming, and Daniel B. Wentz, Philadel¬
phia, Pa., representing Eastern Ken¬
tucky, Virginia and high volatile fields
of West Virginia.

The headquarters are located in the
new Interior Department Building, at
Washington,   D.   C.





LEGAL    NOTES    AFFECTING    REALTY





Prepared  by Committee on Real Estate Laws of
Real Estate Board, Samuel P. Goldman, Chairman





Parties  Adversely  Interested.

AN action was brought by a real es¬
tate broker against a client for
commissions claimed to have been earned
for effecting an agreement for an ex¬
change of real estate. Defendant em¬
ployed plaintiff as a broker to sell cer¬
tain houses and lots in the city of New
York, or to procure an exchange thereof
for a farm. Plaintiff found a person who
owned a farm at .Austerlitz, N. Y., and
an agreement was made between the
respective owners of the city and coun¬
try properties for an exchange. The
only defense which the court found it
necessary to consider was that based
upon the fact that plaintiff had a secret
agreement, concealed from defendant,
whereby he was to receive a commission
from the owner of the farm, as well as
from defendant. That he had such a
secret agreement was admitted, but it
was the plaintiff's contention, in which
he was upheld by the Appellate Term,
that the fact of such an agreement did
not preclude a recovery of commissions
from the present defendant. The Ap¬
pellate Term rested its decision upon
Knauss v. Krueger Brewing Co., 142 N.
Y. 70, 36 N. E. 867. In that case the
evidence showed that the broker was
employed solely to bring the parties to¬
gether, having nothing to do with the
negotiations between them, and neither
assuming nor being requested to advise
as to the desirability of the purchase or
the terms of sale. In that very case the
court said:

"In regard to the subject of the double
employment, if it be of a nature where
by possibility the interests of the parties
may be diverse, we agree that it cannot
be upheld if concealed from knowledge."
142 N. Y. 77, 36 N. E. 868.

"On the other hand," the New York
-Appellate Division said, reversing the
decision of the .Appellate Term, Erland
v. Gibbons, 163 N. Y. Supp. 582. "the
authorities are numerous and unanimous
to the effect that, where a broker ad¬
vises his principal as to the desirability
of a sale or exchange and takes an active
part in the negotiations, he cannot re¬
cover his commissions if it appears that
without his principal's knowledge he has
an agreement for a commission from
the other party to the negotiations.
Carman v. Beach, 63 N. Y. 97:"Tacobs v.
Beyer, 141 .-App. Div. 49, 125 N.'Y. Supp.
.597; Dickinson v. Tvsen, 209 N. Y. 395-
-100. 103 N. E. 703.

"In the present case, the concealment
from defendant of the agreement for a
commission from the owner of the farm
is distinctly admitted by plaintiff. He
swears that he did not communicate the
fact to defendant 'because I did not
think it was anybody's business.' As to
the relation of advisor which he assumed
towards defendant, the evidence leaves
no doubt. The defendant, whom the
trial court believed, swears most posi¬
tively that plaintiff not only advised him
to take the farm in exchange for his lots,
hut strongly urged him to do so, and
the plaintiff himself testified that his
agreement with defendant was that he
should get a place for the latter and 'ad¬





vise him whether I thought it was good
or bad,' and again he says:

" 'Mr. Gibbons asked me what I
(hought of the place, and I told him I
thought it was all right.'

"Indeed, the whole testimony as to
the actual transaction shows very clearly
that plaintiff did not content himself
with introducing the parties and leaving
them to negotiate between themselves,
but actively and rather insistently urged
upon the defendant the desirability of
making the proposed exchange. Under
these circumstances, he cannot recover
a  brokerage."

Specific Performance of Contract.

In an action to enforce specific per¬
formance of a written contract for the
exchange of real property, it appeared
that the plaintiff agreed to exchange an
elevator apartment house for property
owned by defendants, the contract pro¬
viding that an annexed statement of
rents was a true and correct statement
cf the income of the premises. The
statement showed that only three of the
apartments were vacant, and at the time
fixed for the transfer it appeared that,
v.hile more than three of the apartments
were   physically   vacant,   yet   only   two





REGISTERING ARCHITECTS.
A TTENTION is called to the
■^ fact that the New York State
Law regulating the practice of
architecture has recently been
amended. One of the amend¬
ments extends the exemption pe¬
riod whereby certificates of regis¬
tration may be issued to archi¬
tects who were in practice pre¬
vious to the enactment of the
original registration act, namely,
April 28, 1915. All architects
who were in practice in New York
State previous to that date may
now secure certificates, provided
their applications are filed before
January 1, 1918, and provided
such applications are approved by
the Board of Examiners. Appli¬
cation blanks may be secured by
addressing the Department of Ed¬
ucation. Educational Building, Al¬
bany. New York. One of the
amendments iust enacted is of in¬
terest to architects of other states
and reads as follows: "Any archi¬
tect who has lawfully practiced
architecture for a period of more
than ten years without the State
shall be reauired to take onlv a
practical examination, which shall
be of the nature to be determined
by the State Board of Examiners
pnd Registration of Architects."
One of the amendments of the
New York Law which is of
interest to those of other states
contemDlating similar legislation
is as follows: "But this article
shall not be construed to prevent
persons other than architects from
filing anplications for building per¬
mits   or   obtaining   such   permits."





were actually vacant, the others being
held under valid leases, or under leases
to commence the following day; the con¬
dition of the apartment house thus being
better then than represented. The New
York .Appellate Division held, Leona
Holding Corp. v. Bigelow, 163 N. Y.
Supp. 252, that plaintiff was entitled to
specific performance, there being no sub¬
stantial breach, notwithstanding a letter
written by plaintiff's counsel informed
defendants that there were five vacan¬
cies; the letter showing the true state of
affairs, and that the apartments were
under  valid  leases.

Boundaries.                         ,

Where a lane for its entire length was
well defined and recognized as such for
a period of more than 30 years and was
used as a lane openly, notoriously, ad-
i.ersely, and continuously as a means of
ingress and egress to and from the re¬
spective properties adjoining, the long
acquiescence of the owners involved in
accepting the fences along the sides of
the lane as the boundary lines of their
properties was held conclusive against
them.—Marion v. Balsley. Michigan Su¬
preme Court, 161 N. W. 820.

Exchange of Properties.

.A contract for the exchange of prop¬
erties provided that defendants' land waa
to be taken by plaintiff, subject to a
mortgage for five years. Defendants
being unable to secure an extension of
the mortgage in time, the parties en¬
tered into a supplementary agreement,
which allowed defendants until Novem¬
ber 1 to procure the mortgage, and pro¬
vided that, if they failed, plaintiff should
be left to his own resources, with the
help of a note which the defendants ex¬
ecuted to him. The next day defendants
conveyed the land to a third person at
plaintiff's request. In an action on the
note the New York Appellate Division
holds, Reisenburger y. Otto, 163 N. Y.
Supp. 243. that, while it was expected
that plaintiff should be the mortgagor,
defendants, by conveying to the third
person, consented that he be substituted,
and the conveyance did not render the
supplementary agreement void, so as to
preclude recovery on the note.

Incomplete  Contract of Sale.

.An offer to purchase real estate by
letter accompanied by a payment of a
certain sum was met hv the introduction
of new conditions which were not ac¬
cepted by the purchaser. The latter in
a subsequent letter introduced other nevi/
conditions, which the vendor did not ac¬
cept, but requested a verbal conference.
This was agreed to by the purchaser,
but without the holding of any confer¬
ence he subsequently demanded the re¬
turn of earnest money. The Illinois Ap¬
pellate Court. Mertel v. Walter. 200 111.
App 136, held that there was no meet¬
ing in the minds of the parties so as to
constitute a contract of sale, and the
purchaser was entitled to recover back
the  earnest money.





The Coal Situation.

.At a meeting of the Upper Manhattan
Propert}' Owners' .Association a com¬
mittee of twelve was appointed to in¬
vestigate the coal condition. It is the
object of this committee to meet other
committees from all property owners'
associations, and to provide ways and
means to supply heat for the tenants
for the coming winter.

Many suggestions were made such as
the use of soft coal, oil burners and gas.
The various ideas are going to be ex¬
perimented with and if found practical,
legislation will be asked for to allow
modifications of the various city ordin¬
ances so as to use these means to stave
off the high prices and shortage of coal.

Suggestions will be asked from all
manufacturers of substitutes for coal and
if possible the use of coal will be en¬
tirely done away with. The method of
oil burning so successfully used in the
far West will be given a thorough trial.
The Committee will be glad to receive
any suggestions that should be sent to
Coal Committee of the Upper Manhat¬
tan  Property Owners' Association.