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732 RECORD AND GUIDE June 8, 1918 NEW YORK INCOME CORPORATION Bank of Commerce Bldg. 31 Nassau St., New York T«lephoD8, Cortland 4706 FINANCES Operation of Apartment and Easiness Properties Short-Term INCOME Loans If yoD are Owner, Operator or Man- mger of Property, onr Booklet No. 2 will interest yon. LEGAL NOTES AFFECTING REALTY Prepared by Committee on Real Estate Laws of Real Estate Board, Samuel P, Goldman, Chairman Realty Supervision Co. 45 West 34th St., New York Business Buildings Only Completely maintained and operated at a Fixed Annual Contract Price We supply and pay for r COAL HELP ALL -! SUPPLIES 1 REPAIRS I INCIDENTALS May we submit our estimate? JOHN F. DOYLE & SONS REAL ESTATE AGENTS BROKERS and APPRAISERS 74 Wall Street, New York City Management of Estates a Specialty Member ef Board of Broilers Jobn F. Doyle John F. Doyle, Jr. Alfred L. Doyle J. CLARENCE DAVIES BRONX BOROUGH REAL ESTATE 149th STREET & THIRD AVENUE Tel. Con. Branch Office, 32 NASSAU ST. Member of Board of Brokers Let a trained and equipped organization manage your prop¬ erty. SPEAR & CO., Real Estate 840 Broadway, New Tork FIRM OF LEONARD J.CARPENTER Agents Brokers Appraisers 25 LIBERTY STREET Branch: Corner Third Ave. and 68th Sl. Entire Charge of Property D. X. Swainson A. H. Carpenter C. L. Carpenter FRED'K FOX&CO. Business Building Brolcers 14 W. 40th STREET and 793 BROADWAY F.R.Wood,W.H.Dolson Co. REAL ESTATE AND MORTGAGE LOANS MANAGERS OF ESTATES Broadway, cor. SOth St. 141 Broadway A BROKER procured a lessee ready *^ and willing to hire a building for use solely as a garage. The prospective lessee entered into an agreement as to the terms ot lease with the owner, who at the last moment refused to execute the lease because the business could not be carried on in the zone by reason of the resolution adopted by the Board of Jcstimate and Apportionment, under Laws iyi6, c. 497, restricting such zone to residential use. The New York Ap¬ pellate Division holds, Markovitz v. Arrow Const. Co., 109 N. Y. Supp. 159, that the broker was not entitled to a commission. Everyone is presumed to know of the Zuaing Resolution. The owner was not called upon to attempt to get the Board to change the boundary of the residential zone where the build¬ ing was situated just because it had the power to do so. Reformation of Contract for Exchange. In an action to reform a contract for the exchange of lots and for a specihc performance of the contract as re¬ tormed, the New York Appellate Uivision holds, Flmn Realty Corp. v. Charter Const. Co., 169 N. Y. Supp. 116, that the fact that the defendant's agent saw the plaintiff's lots before tne contract of exchange was made would not be notice to the defendant that the plaintiff's lots were subject to building restrictions, although the lots were ot a uniform size and the build¬ ings thereon of a uniform distance from the road. Whether the parties to the exchange inadvertently omitted to men¬ tion in the contract that the plaintiff's lots were subject to building restrictions was held to be a question of actual intention, and any knowledge of the broker who acted lor both parties could not be imputed to the defendant to ascertain his intention. Rescission of Contract of Sale. The Minnesota Supreme Court holds. Nelson v. Berkner, 166 N. W. 347, that evidence of fraudulent promissory representations made with no intention to keep them and solely for the purpose of inducing another to enter into a contract may be proven, though at variance with the written contract. But such representations are not grounds for rescission when the written con¬ tract, to the promisee's knowledge, re¬ veals the falsity of the promise; for he cannot then be said to have relied thereon in entering into the contract. If, however, such a promise is based upon false representations in respect to existing facts made in connection with the promise it affords a ground for rescinding the contract induced thereby. Breach of Covenant to Repair. The Kansas Supreme Court holds that where a landlord has agreed to repair the porch of a dwelling house and fails to do so, a tenant who knows of the defective condition of the porch, and continues to use it for several months, cannot recover damages for a conse¬ quent injury, when by a slight outlay he might have remedied the defect and averted the injury, and could have charged such outlay to the landlord against the rent then due and unpaid.— Murrell v. Crawford, 169 Pac. 561. Discharge of Antecedent Debt. Although the courts are divided upon the question, the numerical weight of authority is to the effect that the com¬ plete satisfaction and discharge of an antecedent debt is a valuable consider¬ ation for the conveyance of real prop¬ erty. The Oklahoma Supreme Court, Noe V. Smith, 169 Pac. 1108, considers that the weight of reason is also with that holding. "For the one reason the courts give for holding that an antecedent debt is not a valuable consideration is that the purchaser is placed in no worse posi¬ tion than he was before; that he has parted with nothing of value. But where there is a complete satisfaction and dis¬ charge of the debt, that is not true. For there is a marked distiuction between taking property in complete satisfaction and discharge of an antecedent debt, and simply taking a mortgage on it to secure an antecedent debt. And a failure of some courts to bear in mind this dis¬ tinction is responsible ^or much of the confusion on this question." The court holds that a complete satisfaction and discharge of a pre-existing debt to a partnership is a valuable consideration for the conveyance of real estate to a member of the firm, since the proportion of the sura credited upon the account owned by the other members of the firm is cast upon their member to whom the real estate is conveyed. Broker's Right to Commissions. A realty broker was authorized to sell at a minimum price of $32.50 an acre, with the understanding that, if he sold for as much as $35 an acre, he should get a commission of 5 per cent., and if he sold for not less than $33.25 and not exceeding $35 an acre, he should get all in excess of $33.25 per acre. The broker sold for $37.50 an acre, after having en¬ deavored to get away from the original contract when sending his principal a telegram for permission to sell at $32.50. The principal was not deceived into making a new contract, or relinquishing his rights, as he approved the contract ot sale, which disclosed the real trans¬ action, on its receipt, safeguarding him¬ self by an accompanying letter, holding the broker to the original agreement as to compensation. The Alabama Supreme Court held. Clay v. Cummins, 77 So. 328, that the broker was entitled to a com¬ mission of 5 per cent, under the original agreement, and his principal, not having been misled, and having expressly rati¬ fied the sale on condition the broker should be paid as provided by the orig¬ inal agreement, cannot set up that the broker forfeited his right as intending to get from under the original agree¬ ment. It was held that the broker was entitled to the commission of 5 per cent. provided in the agreement. Purchaser's Equitable Interest. In an action for the specific per¬ formance of an oral contract of sale of real estate, with a prayer for relief, it appeared that the plaintiff, the vendee, took possefision and made such part performance that the contract was taken out of the statute of frauds. He had an equitable interest. Certain in¬ stallments of the purchase price were not due. The defendant could not be required to take them in advance of the due date. Therefore the plaintiff, though he had an equitable interest, could not call in the legal title. The defendant repudiated the contract, claimed that the plaintiff had no in¬ terest, and that he was the sole owner, free of any claim of the plaintiff. The Minnesota Supreme Court, Porten v. Peterson, 166 N. W. 184, reversing judg¬ ment for the defendant, holds that the trial court should have entered judg¬ ment, determining the rights of the plaintiff and the defendant in the prop¬ erty; that is, that it should have deter¬ mined and adjudicated the equitable title of the plaintiff resting upon the defendant's legal title. The default of the plaintiff in making payments when due did not bar him of his equitable interest in the absence of laches or abandonment, or of forfeiture by the affirmative action of the defendant, and under the evidence none of these was present, and strict payment was waived. Investing Another with Authority. When an instrument which clothes an¬ other with the indicia of title to prop¬ erty is used by him, the equities of inno¬ cent purchasers are protected. For where the true owner holds out another or allows him to appear as the owner of, or as having full power of disposi¬ tion over, the property, and thus leads a third person to do what he would not otherwise have done, the owner will not then be allowed to subject such third person to loss or injury by disappointing the expectations upon which he acted.— Noe V. Smith (Okla.), 169 Pac 1108.