Majority
p. 914Peter W. Gallaudet et al., Pl’ffs, v. Charles W. Kellogg et al., Def’ts. (Supreme Court, General Term, First Department, Filed October 16, 1891.)
Headnote
COKTBACT—VaEIANCE.Plaintiffs sued to recover commissions claimed to have been earned under a paroi contract to aid defendants in procuring a contract to build a bridge. It appeared on the trial that before the latter contract was signed the parties hereto agreed upon a written statement which set forth their understanding of the agreement, which provided that plaintiffs should give defendants financial aid by selling bonds and were to take their commissions in instalments as the bonds were sold and the proceeds turned over. Plaintiffs' representative testified that there was but one contract and that the writing was intended to evidence it. Held, that there was a fatal variance and that the complaint should have been dismissed.
Exceptions ordered to be heard in the first instance at the general term.
The action was brought to recover the sum of $100,000 under un alleged contract between the plaintiffs and the defendants, by which, as alleged in the complaint, the plaintiffs “promised and agred to assist, further and aid the defendants, and to use their best endeavors to procure a valid contract, under and by the terms of which the defendants would be authorized and empowered to ■complete the building and construction of a bridge over the Hudson river at the city of Poughkeepsie, in the state of New York, known as the Poughkeepsie Bridge,’’ and for which services, the the complaint alleges, the defendants agreed to pay the plaintiffs the sum of $100,000 “ upon the execution and delivery to them ■of said contract.”
It appeared on the trial that before the contract was signed the parties hereto reduced their agreement to writing, which written agreement provided that plaintiffs should sell bonds and turn over the proceeds to defendants and should take their commissions in instalments as they sold said bonds, and that they did not sell the bonds, nor pay over the proceeds.
George W. Wingate, for pl’ffs; J. A. Bush and Joseph H. Choate, for def’ts.
We are of the opinion that the exceptions must be overruled except as to the direction of a verdict.
The cause of action set forth in the complaint was based upon a contract by which compensation was promised to the plaintiffs simply for services in aiding and assisting in the procurement of
p. 915
an agreement whereby the defendants would become contractors for the work of building a bridge over the Hudson river at Poughkeepsie. According to the complaint, this agreement sued on contemplated nothing further of service or duty on the part of the plaintiffs than above stated, and for their aid they were to receive five per cent of the price of the work, to be paid on the execution and delivery to the defendants of a contract for construction. While negotiations between the defendants and the parties for whom the bridge was to be built were pending'and about concluded, but before the contract was signed, these plaintiffs and the defendants met in conference and agreed upon a written statement of the understanding between them, and there can be no doubt on the testimony that the plaintiffs accepted that writing as containing the exact terms of the contract under which, they were to be entitled to compensation from the defendants. It is dated August 27, 1886. Beveridge, who represented the plaintiffs, swears that there was but one contract, and that it is expressed in that paper. He testifies as follows: “I still say there was but one contract between our firm and the defendants for a commission of five per cent on the contract price, and this paper of August 27th was drawn up to give us evidence, the written evidence of it.” On the proof, therefore, it is apparent, that the action failed. The cause of action sued on was not only made out, but a substantially different contract from that counted upon was proven; one which fixed the compensation differently, provided for its payment from a specified source, and required from the plaintiff additional and future service. It is clear there were not two contracts entered into between the plaintiffs and the defendants, and it is also clear that the contract of August 27 was that upon which both parties reposed as the evidence of their respective rights and obligations.
Under those circumstances it is quite clear the plaintiff was not entitled to recover, but we are of opinion that the complaint should have been dismissed instead of a verdict being ordered. All the exceptions, except as stated, are overruled, and judgment directed that the complaint be dismissed, with costs.
Van Brunt, P. J., concurs.