#### Joseph M. Gray, Respondent, *v.*Ralph Izard, Appellant.

Second Department,

January 10, 1908.

Principal and agent — broker’s action for commissions *— failure to show that minds of parties met.

In a bi-oker’s action for commissions for procuring a purchaser for lands the burden is upon the plaintiff to show that the minds of the, parties met upon the terms of sale. What the .parties severally understood to be the result of a conference is immaterial, if in fact their minds did not meet. ■

Evidence in such action.examined, and *held,*to be insufficient to establish that the owner agreed to accept a purchase-money mortgage containing a release clause, as insisted upon by the vendee.

Hooker, J., dissented.

Appeal by the defendant, Ralph Izard, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on the 30th day of August, 1901.

*R. W. Kellogg,*for the appellant.

*James A. Gray,*for the respondent.

Jenks, J.:

This is an appeal from a judgment of the Municipal Court in favor of the plaintiff and against the owner of real estate for *567broker’s commissions. Tlie broker brought together the agent of the proposed purchaser and the owner-to execute a contract, and a draft thereof was submitted to the owner. After discussion the matter was adjourned by mutual consent until the following day. The witnesses do not differ materially as to many of the occurrences at that meeting. The clash is over the question as to what was settled between the proposed purchaser and the defendant and what was unsettled when the adjournment was taken. The purchase price was $15,000, of which $1,000 was due at once, $4,000 on January 1, 1907, and $1,000 to be- secured by a first mortgage. Possession was to be given on July 1,1907. The purchaser (or at least her agent), the broker, an attorney representing the purchaser, the defendant and an attorney who had come in to represent the regular counsel of the defendant, attended the meeting. A draft contract proposed by the purchaser was submitted to the defendant. It contained the terms which I have stated and also a provision that the mortgage should contain a release clause. The defendant drew back on account of the release clause; he said that he was ignorant of the effect of such provision, that he wished to use the mortgage as collateral for a loan, that.he did not know whether a bank would as readily lend him money and take the mortgage as security if it contained such provision. He asked the attorney who represented the purchaser (and who also was an attorney for defendant’s bank, but not as such attorney) if he could advise him; he asked his own attorney. The first attorney said to him as a rule everybody even the banks are very shy of taking mortgages with release clauses.” The second attorney declined to advise Mm. At defendant’s suggestion, the plaintiff went downstairs to defendant’s bank to ascertain the disposition of the bank as to such a mortgage, and returned saying he could not find either one of the officers who could answer that inquiry. The defendant also said that he wished to submit the draft contract to liis regular counsel. The plaintiff’s witnesses testify that the purchaser then spoke up and giving his reasons said that the matter as to its termstmust be closed then and there or not at all, that, he did not object to an adjournment so far as the legal aspects of the contract were concerned in order that defendant might corn-suit counsel, but it must not be for any other purpose, and that the defendant then said the contract was satisfactory save that he wished *568to consult his counsel. On the other hand, the defendant and his witnesses testify that the purchaser said that if defendant wished to consult his counsel on the legal Aspects it was all right, but if defendant wished to consult him on the business part — whereupon the defendant replied that lie did not wish to consult his counsel on the business part, but the banks, and that he would consult the banks, and thereupon the adjourmnént was taken in order that lie' might consult counsel and determine the effect of the release clause on the mortgage if he sought to borrow money on its security.

It is not disputed that the defendant thereafter notified the purchaser that he could not use the mortgage with the release clause, and that he declined to proceed with the affair.. As- the result reached at the time of adjournment has no precise statement, the proof thereof depends upon the testimony of the witnesses as to what was said, what was settled and what was left open when the' discussion closed. The burden of proof was upon the plaintiff. It seems to me that lie did not sustain it. It is not a question of what the purchaser understood or what the defendant understood, but upon what propositions the' minds met. It does not seem probable that the defendant, -who desired to use the security which represented two-thirds of the consideration, who objected to its proposed form, who said- he was ignorant of the effect of the clause, who was informed by those whom he. could consult then that such clause would probably impair its proposed use by him, who tried then and thereto ascertain whether he could use it at his bank, and who said that he would not close the matter until he could be assured on that point, would have yielded so vital a point, and that the adjournment then' consented to was taken with the clear understanding of both parties that the only question open was the legal effect of a draft-contract. It is true- that the plaintiff testifies that lie had theretofore communicated all of the terms over the telephone to the defendant, who accepted them, but this is denied by the defendant, "and his denial is strengthened by the letter put in evidence by the plaintiff, which defendant wrote confirming the acceptance, which restates terms definitely but makes no mention of any release clause That witnesses differ materially does not necessarily lead to the inference that some of them are perjurers. "When testimony is as to words and not facts, it is common knowledge with, us that the *569variances of witnesses equally honest are wide. The memory of one is more retentive than another, the memory of one is more impressed with some expression than another. Witnesses recall, not record or reproduce, and often'arrive at different conclusions of what the parties meant or concluded by their language as the witnesses then understood their words or thereafter recall them. It is hard to find two witnesses who will agree as to the precise conclusion reached as the result of a long discussion when the conclusion has not been finally stated or definitely recorded.

I advise a reversal of this judgment and the ordering of a new trial, costs to abide the event.

Woodward, Gaynor and Rich, JJ,, concurred; Hooker, J., dissented.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.