#### Adolph Loeffler, Respondent, *v.*Simon Friedman, Appellant.

(Supreme Court, Appellate Term,

March, 1899.)

1. Principal and agent — Real estate broker’s commissions-.

Where in an action for commissions a real estate broker proves neither employment, nor an agreement of the parties upon the terms and conditions of the sale or exchange, nor a promise to pay or to sell or exchange, he cannot recover of his alleged principal.

2. Exchange — Offer and acceptance.

On a proposed exchange, a broker wrote that his party would accept for his city house the farm of the other party “ free and clear and §2,000 cash”; the other party replied, “the utmost I could give is §1,000, the farm free and clear”; the broker answered, “I persuaded him (his party) to accept your proposition of §1,000 cash and the farm free and clear. If satisfactory you can meet the party tomorrow * * * to close the matter ”. Held, that there was no binding offer and acceptance.

Apfeal by the defendant from a judgment of the Municipal Court, second district, New York city, in favor of plaintiff.

Alfred B. Jaworower, for appellant.

Edwin F. Stern, for respondent.

MacLean, J.

In his verified complaint, the plaintiff averred that the defendant employed him, as broker, to procure a purchaser for certain property; that he procured a proposed purchaser, who accepted the terms and conditions upon which the defendant, agreed to sell the premises, and that the defendant agreed, in writing, to consummate such purchase and sale. Of these asseverations, the plaintiff proved none upon the trial. He testified that he first met the defendant in the defendant’s store, in July, and offered him some property for his farm in Connecticut, and that they had some correspondence, a part, but not the beginning, of which he introduced in evidence. In a letter of July 15th, after referring to some property apparently disparaged by the defendant, he wrote: “I send you herewith the particulars of another property which may suit you better. Ho. -E. 98th Street, * * * price, $17,000, one mortgage, $li,000.” The defend*751ant replied on the same day: “ Kindly let me know by mail on what conditions the deal in 98th Street can be made. I have seen it. (Salutation and signature.) P. S. Let me know all particulars, including length of time on mortgage.” On the 19th the plaintiff wrote: “ The owner of the property * * * tells me that the mortgage of $11,000 is on the property for some time and has been due for over 4 years, and he is positive that so long as interest is paid punctually, the mortgage can remain for always.” And on the 21st he wrote further: “My party has seen the farm and made me the following proposition: He will accept the farm free and clear and $2,000 cash in payment for his property - E. 98th Street, subject to mortgage of $11,000.” The next day, the defendant wrote: “I have well-considered your proposition and the utmost I could give is $1,000,. the farm free and clear.” On the 26th the plaintiff replied: “ I have seen my party again and * * * I persuaded him to-accept your proposition of $1,000 cash and the farm free and' clear. If satisfactory to you, you can meet the party to-morrow, Wednesday, July 27th, at eleven o’clock, a. m. * * * to close the matter.” The defendant answered on the same day, excusing himself from the appointment and saying: “Meanwhile will you kindly find out if I can procure from them a standing-mortgage. Upon receipt of your answer, I will let you know when I can meet your party.” To this the plaintiff replied on July 28th: “In reference to the mortgage, can only state that the same can positively remain as long as interest is paid punctually. The mortgage was made a good many years ago and is now four years overdue, which shows very plainly that the party does not want the money. It would be foolish to disturb the mortgage and insist on an extension as long as the mortgagee is satisfied.” Then, and on the same day, the defendant ended the chaffering, as he had a right to, even if he gave a conventional rather than the real reason for his action, with a postal card, running: “ Tours received and in reply would say that, owing to unforeseen circumstances I am unable to make the deal as I would wish, so I am compelled to drop it at present.” In all this the plaintiff proved neither employment, nor agreement upon the terms and conditions, nor promise to pay or to sell or to exchange. The mere statement by the defendant of the utmost he could give in money and property did not make an offer, nor could another make it a proposition by calling it a proposition. The plaintiff’s letter, purporting to accept a proposition by the *752defendant, was itself but an offer, and could only become part of an agreement through acceptance by the defendant. Harvey v. Facey, App. Cases, 1898; H. of L. and P. C. 552 Moreover, the plaintiff had kept negotiations from passing a preliminary stage by failing to furnish particulars about the stability of the mortgage according to request, which request he again disregarded after what he called the acceptance, and reproved his alleged employer as foolish for the requirement.

The judgment should have been given to the defendant, and it should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Fbeedman, P. J., concurs.

Leventritt, J. (Concurring.)

In my opinion the correspondence between the plaintiff and the defendant, as detailed by Mr. Justice MacLean, established an agreement for the exchange of the defendant’s farm for the property on East Ninety-eighth street, and if the plaintiff had proven, to the satisfaction of the trial justice, employment by the defendant, or an express or implied promise on his part to pay brokerage to the plaintiff, the latter would have been entitled to recover. The plaintiff was, however, concededly the agent of- the owner of the Ninety-eighth street property, and on his behalf proposed an exchange to the defendant. The mere fact that the transaction was not in the nature of a sale, but involved an exchange, does not impliedly charge the defendant with any liability to compensate. The record fails to disclose any evidence of employment or of a uromise to pay, hence the judgment should be reversed.

Judgment reversed and new trial ordered, with costs to appellant to abide event.