#### Andrew Powell, Pl’ff and Resp’t, *v.*John Anderson, Def’t and App’lt.

*(New York Common Pleas,*

*General Term,*

*Filed April 1, 1889.)*

1. Contract for sale of property—Commissions—When not entitled TO RECOVER ON CONTRACT.

Where the plaintiff claimed one-half of one per cent commissions on the sale of defendant’s property, under a special contract with the defendant, that if plaintiff or defendant sold the house in question at the price of $49,500, the plaintiff was to have one per cent commission, and if any other broker sold it, the plaintiff was to have half of one per cent commissions, the house was afterwards sold for $45,000 by another broker, and the plaintiff commenced this suit to recover one-half of one per cent commissions. It also appeared that about a month and a half after the special contract was entered into, the defendant notified the plaintiff that he withdrew the house from plaintiff’s hands, and on the same day sold the house through another broker. *Held,*that the house not having been sold for the price named in the special agreement, the plaintiff was not entitled to recover on that contract.

2. Same—When plaintiff entitled to commission.

*Held,*if plaintiff had produced a purchaser at $45,000, and defendant had accepted such purchaser, the plaintiff would have been entitled to a commission, but not under his original special contract.

3. Same—Pleadings—Proof—Claim for damages—Basis of.

*Held,*proof could not be given under the pleadings in this action, that in consequence of the defendant withdrawing from plaintiff authority to sell the house, so soon after making the special contract, the defendant had deprived plaintiff of the opportunity of earning a commission; this, if it has any legal basis, is a claim for damages, and the verdict cannot be sustained on that theory.

Appeal from judgment entered upon a verdict for $252.56 in favor of plaintiff in this court.

The case was tried before Mr. Justice Bookstaver and a jury, and resulted in a verdict for the plaintiff. At the close of the plaintiff’s case, the defendant’s counsel moved to dismiss the complaint, upon the ground “that there had been no sale of this property, authorizing the payment of any commissions to the plaintiff; that there had been no sale whereby, under the terms of the contract between the parties, plaintiff was entitled to any commission,” which motion was denied, and an exception duly taken. At the close of the case, the defendant moved to set aside the verdict, a,nd for a new trial. An order denying a motion for a new trial was entered, and the defendant appealed to this court from the judgment entered upon the verdict of *491the jury, and rom the order denying the motion for a new trial.

The other facts sufficiently appear in the opinions of the court.

*James F.*Horan, for app’lt, *(S. W. Fullerton,*of counsel); *Gwillim & Meyers,*for resp’t.

Daly, J.

The plaintiff claims to recover the commission of one-half of one per cent upon a special contract, by which he, a real estate broker, in consideration of his special efforts to sell the defendant’s house, and his advertising the said house in the newspapers, and in his circulars or special list of west side houses which he was about to publish, was to receive one per cent on the sum for which said house should be sold by himself, or by the defendant, and one-half of one per cent if the sale was made by any other broker. This is the agreement as set out in the complaint, but the evidence on the part of plaintiff shows that he was employed to sell the house for not less than the sum of $49,500, and that he was to have one per cent commission if he or defendant sold the house, and one half per cent commission, if any other broker sold it.

The plaintiff did not find a purchaser at $49,500, nor did the defendant. The house was sold by the latter, through one Tannenbaum, another broker, for $45,000. The plaintiff claims the one-half per cent commission on this sale, but I do not see that he is entitled to it. Unless he performed his contract with defendant, he could not recover under it, and unless he found a purchaser at $49,500, he did not perform. Had he produced a purchaser at $45,000, and defendant had accepted such purchaser, the plaintiff would have been entitled to a commission, but not under his original special contract. His recovery would have been on account of services as real estate broker, in effecting a sale at the lesser price, with defendant’s consent, or for procuring a purchaser accepted by defendant, at that price. He could not be said to have performed his contract as originally entered into by him. So the sale by defendant, through another broker, at the lesser price of $45,000, was not within any terms of the contract with plaintiff, and gave the latter no right to recovery. The contract, as set out in the complaint, would have justified a recovery on the facts, because it alleged an agreement for a commission on such sum as defendant might agree to accept from a purchaser; but the contract, as proved, contained no such stipulation.

The judgment should be reversed, and a new trial ordered, with costs of this appeal to defendant to abide the event.

Yajst Hoesen, J., concurs.

Larremore, Ch. J.

The plaintiff is a rea, estate broker, and, in this action, seeks to recover a commission of one-half of one per cent on account of the sale of a house and lot *492which belonged to defendant. He alleges a special contract by which, “in consideration of plaintiff’s special efforts to sell said house, and of advertising the said house in the newspapers, and in a circular or special list of west side houses, which plaintiff was then about to publish and issue, the defendant promised and agreed to pay to the plaintiff, one per cent on the sum for which said house should be sold, provided either the plaintiff or defendant made the sale, and one-half of one per cent if the sale was made by any other broker.”

There was evidence to the effect that this agreement had been made in August, 1886, and the finding of the jury in plaintiff’s favor establishes, for the purposes of this appeal, that such was the contract between the parties. At the same time, plaintiff named to defendant $49,500 as the lowest price for which he would sell the house, and it was arranged between them that the asking price, to be given in the circular about.to be issued, should be $50,000. Subsequently, and in September, 1886, the property was sold through a broker named Tannebaum for $45,000.

It appears, by the testimony of defendant’s witnesses, that such sale was but the eventual acceptance by defendant of a standing offer of that amount, made through this same broker several months before the making of the special agreement with plaintiff. This fact is not questioned or denied by the evidence, and, in my_ opinion, it is fatal to plaintiff’s recovery. There is nothing inherently improper in the special contract alleged, and no reason why the court should look upon its enforcement with disfavor. If the property had been sold under an offer made after the issue of plaintiff’s circular, and either for the asking price therein named, or for a smaller sum which was arrived at by negotiations between defendant and the person making such new offer, it could be fairly presumed that plaintiff’s action had contributed the part towards the consummation of such sale which was contemplated by the special contract, and that he had earned his commission of one-half of one per cent.

But, on the contrary, it is conclusively shown that plaintiff’s efforts under the special contract did not in any manner contribute to the sale, because the offer which defendant finally accepted was made before the commencement of such efforts.

Plaintiff cannot recover on the ground of bare compensation for work and labor in the distribution of the circular, etc., and for reinbursement for expenses incurred in advertising and in other directions. He sues for a commission, and his right of action is, *therefore,*contingent upon whether or not he was the procuring, cause or, under the *493peculiar circumstances of the case at bar, a part of the procuring cause, in obtaining the purchaser. Any claim which might be asserted by reason of defendant’s withdrawing his house so soon after the making of the special ■contract, and, therefore, not giving plaintiff a fair opportunity to earn the proposed commission, would, if it has any legal basis, be a claim for damages, and, under these pleadings and proofs, this verdict could not be sustained on that theory. ÍTor do I think any real uncertainty is created by the fact that the special agreement provides that plaintiff’s commissions should be “ on the sum for which said house be sold.” The necessary interpretation of this language, general as it is, would be that the commission should be computed on the amount of the purchase price, provided plaintiff was entitled to any commission at all.

The charge of the learned judge is not included in the case, and we, therefore, cannot say under what instructions the verdict for plaintiff was found. But under no construction of the evidence could plaintiff have been entitled to a verdict, and one should have been directed for the defendant.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.