(91 Hun, 173.)

#### SMITH v. NICOLL.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Real-Estate Agents—Right to Commissions.

Defendant employed plaintiff, a real-estate broker, to sell his farm for stipulated commissions, but wrote to the prospective purchaser, apprising him of the amount of the commissions, which caused him to withdraw from the deal. *Held,*that plaintiff had not procured a purchaser on defendant’s terms, and was not entitled to his commission.

Appeal from circuit court, Suffolk county.

Action by Elliott J. Smith against William Nicoll to recover commissions on a sale of real estate. The complaint was dismissed, and plaintiff appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

George H. Bruce, for appellant.

Timothy M. Griffi'ng, for respondent..

BROWN, P. J.

We are of the opinion that this case was properly disposed of at the circuit. The action was to recover commissions upon a sale of real estate. The parties do not differ about the rule of law applicable to the case, and the only question is whether the plaintiff procured for the defendant a purchaser ready and willing to purchase the land upon his terms. The plaintiff testified: That defendant asked him to find a purchaser for his farm. That thereafter he had negotiations with Mr. George C. Taylor, with the result that on October 22, 1894, Mr. Taylor, through one Treadwell, made an offer of $160 per acre for three islands in Great South Bay, called “Fire Islands.” The plaintiff thereupon called on the defendant, and reported the offer to him, and told him that the brokerage would be $8,000, and, upon the basis of 220 acres, the sale would net him $27,200; that Mr. Taylor desired his own agent, Treadwell, to have1 one-half of the commissions; and that Treadwell was to have $4,-000. Defendant orally accepted the offer, and a contract having been prepared, expressing the terms of the sale, it was signed by defendant, and delivered to the plaintiff, to procure Taylor’s signature-*348Plaintiff delivered the contract to Taylor, but before he signed it he received from the defendant a letter, of which the following is a copy:

> “October 27th, 189-1.

> “George C. Taylor, Esq., Islip, L. I.—Dear Sir: I had a call a few days

> ago from Mess. Elliott J. and Eugene R. Smith, who came to make a proposition to me regarding the sale of the islands in the Great South Bay. They informed me that you were willing to purchase this property at $160 per acre, but demanded for themselves and Mr.- Treadwell a commission of $8,000, which they said was to be divided between them. They assured me that you knew of and approved this arrangement, and that the sale could not be made on any other basis. I therefore prepared and signed a contract, and gave it to Smith., I do not wish you to sign the contract without being fully aware of the disposition to be made of the purchase money, and take this means to assure myself that you are informed- of the exact facts in the case. If you see nothing objectionable to the arrangement, I have nothing to say, as the contract is perfectly satisfactory to me,' and I have no wish to withdraw from it.

> “I remain, very truly yours, Wm. Nieoll.”

Taylor was called as a .witness by the plaintiff, and testified upon his cross-examination that he knew nothing about the arrangement that Treadwell should have half of the commission, that he thought it was an outrageous piece of business, and that, after receiving defendant’s letter, he declined to have anything further to do with the matter.

Upon these facts it is clear that the plaintiff did not procure a purchaser on the defendant’s terms. The terms of the sale were for the first time fixed in the written contract; and it was essential to plaintiff’s right to recover that he should have procured Mr. Taylor’s assent to that contract, or proven that he was prevented from so doing by the defendant. It was not an unlawful interference for the defendant to have written the letter I have quoted. No terms or conditions were by that letter attached to the sale, except such as were expressed in the written contract; and defendant expressed his satisfaction with the contract, and that he had no desire to withdraw from it. In our judgment, it was eminently proper that Mr. Taylor should have been informed of the extraordinary commission which the agents of the parties demanded, and of the large sum which his agent, Treadwell, expected to receive from the sale, and the defendant performed a commendable act in giving him that information. If it had the effect to prevent the sale, the plaintiff has no legal cause of complaint. The condition was one created by himself, and one which both principals were entitled to know. The judgment must be affirmed, with costs. All concur.