#### Albert M. Stadler, Respondent, *v.*James Everard’s Breweries, Appellant.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Sale — output of ice plant — action for broker’s commissions — erroneous refusal to charge — evidence.

A broker’s duty is to bring the minds of buyer and seller in agreement as to the price and terms on which a sale is to be made, and until that is done his right to commissions does not accrue.

Plaintiff, after stating to defendant that he could obtain a purchaser for the entire output of defendant’s ice manufacturing plant, brought its representative and the president of an ice company together. The defendant refused to sign a proposed contract signed by" the ice company, which provided “ should the output during the period from May 1st to October 1st of any year of,this agreement not average nine hundred (900) cakes per day, then during the succeeding six months, the party of the second part (the ice company) will be obligated to purchase and pay *408for only one-third, of the amount manufactured during the preceding period *ih-om*May 1st *to*October 1st.” On request, the court refused to charge “that the burden is on the plaintiff to prove by a fair preponderance of evidence that the defendant agreed verbally with the ice company that three hundred cakes of ice a day to be supplied in the winter time was made dependent upon the defendant’s supplying the ice company with nine hundred cakes in the summer time,” and did charge that it was a question for the jury to determine from the evidence. Held, that such refusal to charge was error calling for the reversal of a judgment in plaintiff’s favor calculated upon the amount oi ice that would have been delivered for a period of five years had defendant delivered 1,200 cakes in each year.

Appeal by the defendant from a judgment of the City Court of the city of ¡New York in favor of the plaintiff for $2,733.75 entered upon the verdict of a jury.

Gratz ¡Nathan (Thomas F. Keogh, of counsel), for appellant.

Henry A. ¡Rubino, for respondent.

Page, J.

The action was to recover for broker’s commission in obtaining a purchaser for ice manufactured by the defendant.

The plaintiff sought the defendant, stating that he could obtain a purchaser for the entire output of the defendant’s ice manufacturing plant, and brought the representative of the defendant and the president of the Knickerbocker Ice Company together. ¡Negotiations continued for some time. The defendant seems to have been concerned with disposing of his winter product while the ice company wished to insure as large a delivery of ice in the summer as possible and desired to make the winter deliveries conditional upon and proportional to the summer deliveries. Three separate tentative contracts in writing were prepared, the last of which was signed by the Knickerbocker Ice Company, and presented by the plaintiff to the defendant. This last proposed contract, however, had the provision “ should the output during the period from Hay 1st to October 1st of *409any year of this agreement not average nine hundred (900) cakes per day, then during the succeeding six months, the party of the second part [the ice company] will be obligated to purchase and pay for only one-third of the amount manufactured during the preceding period from Hay 1st to October 1st,” Defendant refused to sign this contract. The plaintiff has recovered judgment for his commission calculated upon the amount that would have been delivered for a period of five years, had the defendant delivered 1,200 cakes in each year. It is to be observed that the plaintiff came to defendant claiming to have a purchaser and not, as is frequently the case, where the seller employed the broker to seek out a purchaser. The refusal of the defendant to sign the contract was not capricious, but was based upon one of the material objections that was raised at the first meeting of the parties. This case comes within the rule: “In all the cases, under all and varying forms of expression, the fundamental and correct doctrine is, that the duty assumed by the broker is to bring the minds of the buyer and seller to • an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commissions does not accrue.” Sibbald v. Bethlehem Iron Co., 83 N. Y. 378, 382.

The plaintiff contends that the defendant did orally agree to this provision of the contract but refused to sign the agreement which was reduced to writing. The defendant requested the court to charge the jury “ that the burden is on the plaintiff to prove by a fair preponderance of the evidence that the defendant agreed verbally with the Knickerbocker Ice Company that three hundred cakes of ice a day to be supplied in the ivinter time was made dependent upon the defendant supplying the Ice Company with nine hundred cakes in the summer time. In other words, that the defendant Breweries agreed to the so-called sliding scale included in plaintiff’s exhibit 4.” The court said: “ I charge the jury that is a question for them to determine from the evidence presented upon the trial.” The defendant’s counsel excepted to the charge and to the refusal to charge in the language requested. This was the crucial *410point in the case and the defendant was entitled to have the jury charged substantially as requested.

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

Lehman and Hotchkiss, JJ., concur.

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