(9 App. Div. 101.)

#### WHITE v. MOLLOY.

(Supreme Court, Appellate Division, Second Department.

October 6, 1896.)

Brokers—Right to Commissions.

Where an order for goods given by a broker was accepted by the seller on the belief that the broker was purchasing for himself, the seller may, *163on learning the facts, impose, as a condition of filling the order, that the sale shall be approved by a third person, and the broker cannot recover commissions on such sale unless such condition is performed.

Appeal from' trial term, Kings county.

Action by Rollin W. White against Thomas Molloy, as treasurer of the Onondaga Coarse Salt Association, for broker’s commissions. The complaint was dismissed, and plaintiff appeals. Affirmed.

Argued before BROWN, P. J., and CULLEN, BARTLETT, and HATCH, JJ.

E. H. Harrison, for appellant.

Andrew H. Green, for respondent.

HATCH, J.

The case does not disclose that prior to the present transaction the parties hereto had dealt upon the basis of broker and principal. Although there had been some dealings, their nature does not appear. The parties are, therefore, to be treated, at the opening of the present negotiation, as buyer and seller. Upon this basis the telegram of plaintiff which opened the negotiation constituted an order for two boat loads of salt, as a purchaser. The answer was an acceptance of the offer to the extent of an agreement to furnish and ship the salt as soon as boats could be procured. As no terms were mentioned in the telegram or in the acceptance, a cash transaction would be implied. There was no employment in this transaction of plaintiff as a broker to effect a sale of the salt for the defendant, and thus far they stood in no such relation. Plaintiff followed his telegram with a letter, which showed that he was not intending to make the purchase for himself, but had received the orders from other parties, and was desirous of acting as agent for defendant in effecting the sale, and stated therein upon what terms the sale could be made, and how he would be paid. This apprised the defendant of the nature of the transaction and the attitude of the plaintiff. So understanding, the defendant had a clear legal right to accept or reject the proposition offered, or to impose any conditions upon his acceptance of the order which he chose, and was under no legal or moral obligation to comply with plaintiff’s wishes, or to effect a sale through him. He had a perfect legal right to ignore plaintiff entirely, and deal directly with Church, who had given plaintiff the order; for he was not bound to avail himself of plaintiff’s voluntary action. He had not employed him, and was under no legal obligation to accept his *services.v*There must be an employment, either express of implied, before a broker acquires rights, or liability can attach to the principal. At this time no such relation existed, and consequently no liability. Defendant resided at Syracuse, and was evidently desirous of being assured that the proposition was a safe one for him to accept, and would be carried out with fidelity. He therefore wrote a letter to plaintiff, accenting the offer, conditioned upon a confirmation by one McGrath that the order was satisfactory, and, upon advice by wire from him to that effect, he would ship the salt. Defendant had the right' to impose this condition, and to refuse ship-*164anent until it was obtained, and plaintiff could earn no commissions until he procured such confirmation, so long as defendant was guilty of no act which would operate as a fraud upon plaintiff. There is no proof warranting this inference in the case. The confirmation that the order was satisfactory, by McGrath, was never obtained by plaintiff, and was never given; on the contrary, advice against it was made to defendant by McGrath. It is true that plaintiff testifies that McGrath declined to make any investigation of the matter, and arbitrarily refused to confirm the order; but for this defendant was in no wise responsible. It is not shown that he did anything to influence McGrath’s action, or but that he acted in perfect good faith, as he clearly did within his legal right. Plaintiff, upon this evidence, failed in procuring a purchaser satisfactory to defendant, and in consequence no legal liability was imposed upon him. The fact that a sale was afterwards effected of this salt to Church did not change the condition. There is nothing to show that he did not act in perfect good faith, so far as plaintiff was concerned. The case comes within the principle of Sibbald w. Iron Works, 83 N. Y. 878.

The judgment should be affirmed, with costs. All concur.