#### George Barkley, App’lt, *v.*Dudley Olcott *et al.,*Resp’ts.

*(Supreme Court, General Term, Third Department,*

*Filed May 27, 1889.)*

Contract—For sale of property—Right of agent to recover under— Commissions.

One Gorham, plaintiff’s assignor, had a contract with defendants whereby he was given the exclusive privilege from December 12, 1887, for six months, to sell a certain property at $126,000 upon a commission of $5,000. He did not effect a sale, but brings his action to recover his commission, alleging that defendants, by considering an offer by another party for '$100,000, “broke the market.” It did not appear by the evidence that there ever was any market at $125,000, or even at $100,000. The nearest approach to one being the offer of a certain committee made to Gorham, to hire the property for six months, with the privilege of buying it at the end -of that time for $125,000. In March, 1888, Gorham obtained the right to sell the property for $100,000 to the committee. On April 8, 1888, being obliged to leave for Denver, he wrote to defendants, leaving the further charge of the-property in their hands, and in case of the failure of the committee to buy, permitting them to sell elsewhere, and leaving the question of commission with them. On April seventh, defendants terminated Gorham’s further authority to act by formal notice. *Held,*that as Gorham failed to market the property, and has failed to show that he did so through any fault or misconduct of defendants, and in that the property has not since been sold, no case is presented in which defendants have in any way been benefltted by Gorham’s *efforts.*

*95Appeal from a judgment dismissing the plaintiff’s complaint on the merits, entered upon the verdict of a jury at the Albany circuit, rendered by direction of the court in favor of the defendants, which judgment was entered in the office of the clerk of the county of Albany on the 28th day of December, 1888.

*George B. Wellington,*for app’lt; *M. T. Run,*for resp’ts.

Laudos, J.

Gorham, the plaintiff’s assignor, had a contract with the defendants, whereby he was given the exclusive privilege for six months from December 12, 1887, subject to be revoked by a notice of thirty days, to sell a certain iron making establishment of the defendants for $125,000, upon a commission of $5,000. He did not effect any sale, but brings this action to recover his commission, alleging that the defendants, by their action, “ broke the market,” and thus deprived him of the opportunity to earn his commission. The trial court, at the close of the case, directed a verdict for the defendants. The testimony, taken in the favorable light in which plaintiff’s counsel states it, is that about March 20, 1888, a committee of three persons proposed to Gorham to hire the property for six months, with a right to buy it at $125,000 at the end of that period. What the conversation between Gorham and this committee was, does not appear, but Gorham testifies that he then went to the defendant, King, and stated to him in the presence of the other defendants, that the committee had told him that they had been offered the property at $100,000, and that Mr. King admitted that he had told a gentleman in Hew York, a Mr. Mould, that the property was in Mr. Gorham’s hands for sale at $125,000, but that the defendants would accept $100,000 for it. Mr. King denied this conversation, but admitted he had said to Mould that he would be glad if a purchaser could be found at $100,000. Gorham testified that the offer to sell at $100,000 ruined the market at $125,000.

It does not otherwise appear that there was any market of the property at $125,000, nor even at $100,000. The nearest approach to a market at $125,000, shown by the evidence, was the proposed option of the committee, to be determined after the experimental lease for six months. Ho one testified that the committee had said that the property had been offered to them at $100,000, or that if they made the statement, they had any foundation for it, or that the remark of Mr. King had reached them. There is no evidence that the conversation between Mr. King and Mr. Mould ever reached the market or any intending purchaser..

Before a jury would be justified in finding that such a remark prejudiced Mr. Gorham, there ought to be some evi*96dence tending to show that he probably, had, or could have' found a market at $125,000, and that the remark reached it.

We may concede that such a remark, if not contradicted, would ruin the market at $125,000, but a jury ought not to find that there was a market thus ruined, in the absence of ■evidence tending to show it, and in the presence of evidence, which the case affords, tending strongly to show that there was no such market.

The result of the conversation between Gorham and the defendants in March, was that on March 23, 1888, Gorham solicited and obtained the right for ten days to sell the property for $100,000. On the 3d of April, 1888, he wrote the fendants: “ My only offer at this writing is one from Messrs. Weed, Clark and Weston (the committee above mentioned), who would like to lease for six months, with privilege to buy, * * *; they will not buy without leasing first.” The letter then stated that he was obliged to leave for Denver, and added: “So I leave this matter in your hands now. I have brought it to a focus, and leave you to arrange with Mr. B. G. Clark, 52 Wall street, New York, and know that if it goes through, you will pay me what is right for commissions, etc., and if it does not go through, and you sell elsewhere, you will send me check for my .time, trouble and expense to date.” No arrangement was completed with this committee, and the defendants, on April 7, 1888, sent a formal notice to the plaintiff, terminating his authority, and gave authority to Mr. Mould to sell the property at $100,000, subject to Mr. Gorham’s rights, if he had any.

The defendants certainly had the right to act upon Mr. Gorham’s letter of April 3d, and to assume that the transaction he was negotiating was -his final one, respecting the sale of the property, and that he left its further charge in their hands, and in case of its failure, permitted them to sell the property elsewhere.

The net result is that Mr. Gorham, failed to market the property, and has failed to show that he did so through the fault or misconduct of the defendants.

It does not appear that the property has since been sold; and therefore no case is presented in which the defendants have in any way been benefitted by Gorham’s efforts.

We think that in no reasonable aspect of the case would the jury have been justified in finding for the plaintiff.

Ingalls, J., concurs; Learned, P. J., not acting.