p. 180Jlelcl. that, assuming that the plaintiff’s assignor was justified in arranging for a double commission, the second cause of action was demurrable;
That the complaint did not allege that the defendant made a contract with the plaintiff’s assignor to exchange its property, and that consequently there was no breach of contract for which it was liable in damages.
Appeal by the plaintiff, John Mulhall, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the lltli day of January, 1900, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the second separate cause of action set forth in the amended complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, and dismissing the complaint as to said cause of action.
John II Greener, for the appellant.
Austin E. Pressinger, for the respondent.
The plaintiff’s first cause of action is upon a quantum meruit. He alleges the employment of his assignor, one Unger, by the defendant as its broker to effect an exchange of real estate; that the defendant instructed Unger to offer its property to the owners of certain other property upon specified terms; that Unger, as thus instructed, made the offer to those other owners, and that it was accepted, of which acceptance the defendant was notified; that the defendant thereafter refused to proceed with the exchange; that ■ Unger’s services were reasonably worth $950; and that his claim therefor has been assigned to the plaintiff. This cause of action is not demurred to. The second cause of action — that demurred to — is for damages alleged to have been sustained by Unger in consequence of the defendant’s refusal to carry out the exchange. These damages are the commission of $750 which Unger would have received from the owners of the other property had the exchange gone through. The plaintiff here repeats all the averments of his first cause of action, and adds that the owners of the other property had agreed to pay Unger a commission of $750 upon the completion •of the exchange. Assuming that Unger was but a middleman, invested with no discretion, and that' he was, as contended, justi
p. 181tied in arranging for a double commission
(Knauss' v. Krueger Brewing Co., 142 N. Y. 70 ), still the facts which the plaintiff states constitute no cause of action against the defendant. Beseems to think that he has alleged a breach of contract between Unger and the defendant, for which the latter is at least liable for some damages, if not for the entire §750. But he has alleged no such contract. "What, and all, he has alleged is an employment by the defendant, with a resulting implication to pay Unger the reasonable value of his services. The defendant made no contract with Unger, express or implied, to exchange its property. There has consequently been no breach of any such contract. The only contract between Unger and the defendant was that implied from the employment, and the only possible breach of that contract was the failure to pay him the reasonable value of his services. This second cause of action cannot be upheld as a mere repetition of the first, or because the
quantum meruit incidentally reappears in the repetition. This repetition cannot be treated independently. It is but the prelude to the second cause of action, and the latter must, therefore, stand or fall upon the additional allegations relating to the loss of the other commission. The demurrer was well taken and the judgment should be affirmed, with costs.
Van Brunt, P. J., Rumsey, Patterson and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.