Sugarman v. Sterling

The plaintiffs, real estate brokers, sued for commissions which they claim they earned in procuring a loan on defendants’ real estate. At the trial they presented a prima facie case with one weak link, viz., there is no competent proof that the manager of the bureau of investments of the Lawyers’ Title Insurance Company who assumed to accept the loan for that company has any authority to do so. Upon this ground the trial justice dismissed the complaint on the merits.

[1] It needs no argument or citation to show that a dismissal on the merits is not authorized where there has been only a failure of proof.

[2] Moreover, I doubt whether a disrnissal even without prejudice would have been proper. The witness was allowed to testify without objection that the Title Insurance Company was ready, able, and willing to make the loan, and the record discloses no motion to strike out this testimony, and no motion to dismiss on the ground that there was no proof that the company was ready, able, and willing to perform. It is true that in a sense the testimony on this point is merely a conclusion of the witness, but, under the circumstances disclosed, I do not think that the defendant is in a position to take advantage of this fact.

Judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

SEABURY, J., concurs.

I dissent on the ground that the plaintiffs did not prove that they had obtained any one ready, willing, and able to make the loan they were employed to obtain. They were to obtain a person to loan $17,500. This is not done by obtaining an acceptance of an application from one person of $15,000 and $2,500 from another without proving that these parties had agreed to make one loan and to adjust their proportions bf the loan as between themselves in a participation agreement. The burden of proof rested on the plaintiffs, and they failed to sustain it. The judgment should not have been upon the merits, and should be modified by striking out “upon the merits.”