p. 124iffs upon the verdict of a jury, and from, an order denying defendant’s motion for a new trial. .
N & M. Niles, attorneys, and Joseph N. Tuttle of counsel, for appellant, argued :—
I. It was error for the trial judge to admit in evidence the paper offered in evidence (said agreement) as an agreement for the lease. There can be only two kinds of agreements for a lease : (a.) An agreement which in itself constitutes a letting. (6.) An agreement which does not in itself constitute a letting, but which does bind and engage to a future letting. The present agreement offered and admitted in evidence as an agreement for the lease did not bind the trustees to lease the building at any time ; but expressly reserved to them the right of declining unless their superintendent approved. The trial judge clearly believed that the paper was “ an agreement for a lease,” if it merely looked towards a letting, or was in the line of endeavor for a letting, and he clearly believed that the paper was fit matter for the jury, even if it did not hind the trustees to hire at any time. This error runs through the whole case and explains the judge’s charge. The judge expressly charged that the said paper was “an agreement for a lease,” to which defendant’s counsel duly excepted.
II. The complaint should have been dismissed at the close of plaintiffs’ case. By the plaintiffs’ evidence it appeared that the plaintiffs were employed to procure a lease or a lessee; that the “consummation of all their efforts ” was the procuring of the execution of the agreement; that they could not have procured from said trustees a lease binding the city until the building was erected and approved ; and that the said agreement in itself expressly permitted the said trustees to decline to execute the lease if their superintendent did not approve of the building when erected. Thus it appears
p. 125that no lessee ready, willing and able, had been procured, and therefore the terms of plaintiffs’ employment had not been fulfilled. In the case of Sibbald v. The Bethlehem Iron Co., 83 N. Y., 378 , where the cases on this subject are reviewed, Judge Fir oh says: “ But 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.” Sub-, stituting the word a lease ” for “ sale,” it is evident that the minds of Mrs. Waldo and the school trustees were nbt brought to an agreement for a lease, for (1.) The trustees were not bound to any letting, present or future. (2.) It is very doubtful whether the agreement could have been enforced by either party, on the score of indefiniteness.III. A verdict should have been directed for defendant at the close of the testimony on the grounds there mentioned. For, in addition to the evidence referred to in Point II. hereof, it was in evidence that the building mentioned in said agreement was never begun, and that the whole matter was dropped by the two parties to the same, and this evidence was uncontradicted.
Langbein Bros. & Langbein, attorneys, and J. C. Julius Langbein of counsel, for respondents, argued :—
Plaintiffs performed their duty as real estate agents and brokers under their employment by the defendant when the “ agreement to lease ” was executed by the trustees of common schools for the Twelfth Ward of the city of New York and the defendant'; they did all that the law required of them to do in order to entitle them to their commissions as brokers, and were not responsible for defendant’s failure to carry out the terms of the agreement, whether the same was beneficial to
p. 126her or not. The law is well settled that in order to entitle a real estate agent or broker to commissions he must prove three things: (1.) An employment as broker to sell, exchange or lease. (2.) The bringing of a party who is ready, able and willing to purchase, exchange or lease upon the terms given to him by his principal, and (3.) That he was the procuring cause of the verbal or written contract of sale, exchange or lease. Barnard v. Monnot 1 Abb. Ct. App., 108 ; S. C., 33 How., 440 ; 42 N. Y. (3 Keyes), 203; Smith v. McGovern, 65 N. Y., 574 ; Lloyd v. Matthews, 51 Ib., 124; Sussdorf v. Schmidt, 55 Ib., 320; Jewett v. Emson, 2 Robt., 165; Stillman v. Mitchell, 2 Ib., 523, and numerous other cases. The bringing of the trustees to the defendant by the plaintiffs as her brokers, and that the plaintiffs as such brokers procured the execution of the said paper, or “ agreement to lease,” is admitted. The plaintiffs were therefore entitled to some commission, because the law always implies a promise to pay a reasonable price for services rendered at the request of another. As was well said by the general term of this court, in Ormes v. Dauchy, 45 Supr. Ct., 85, “ Their engagement was ended when they introduced the parties to each other, and the law allows them compensation for that particular service.” A broker is entitled to his commission when he has procured a purchaser for his principal, and an executory contract has been entered into, in the absence of an agreement that the broker should not be entitled to a commission until the contract was fully performed. Hodgkins v. Mead, 29 N. Y. State Rep., 671; S. C., 8 N. Y. Supp., 854 ; Barnard v. Monnot, supra; Bach v. Emerich, 3 J. & S., 548. It matters not whether what a broker has done in effecting the sale of property proves beneficial to the party who has employed him or not; if he has performed what he undertook to do, he is entitled to his commissions. Holly v. Gosling, 3 E. D. Smith,
p. 127262; Van Lieu v. Byrnes, 1 Hilt., 133. Ancl the fact that the contract was not performed between the parties does not affect the broker’s right to recover his commissions. Smith v. Smith, 1 Sweeny, 552 ; Bach v. Emerich, supra; Simonson v. Kissick, 4 Daly, 143 ; Glentworth v. Luther, 21 Barb., 145 . It is not essential to entitle a broker to his commission, that he should have procured a purchaser upon the precise terms named by the principal at the time of the employment, if, through the instrumentality of the broker the buyer and seller meet and negotiations are thus open between them, which continuing without withdrawal by either party therefrom culminate in a contract of sale, though for a less sum than that originally demanded, and upon terms deviating from those first fixed by the principal, the broker has earned his commission. Levy v. Coogan, N. Y. Com. Pleas., Gen’l Term, April, 1890, not yet reported; Dexter v. Campbell, 137 Mass., 198 ; Pantvin v. Curian, 13 Nebraska, 302, and numerous other cases ; in fact this is elementary law.This action was brought by the plaintiffs as real estate brokers to recover compensation for services alleged to have been performed for defendant in pursuance of a certain employment. All questions relating to the fact of the employment, the nature and terms of the employment, the performance of the contract of employment, and the rate of compensation, were submitted to the jury. The verdict was for the plaintiffs, and it should not be disturbed unless there was some error in the course of the trial which calls for reversal. There are numerous exceptions to the admission of evidence, the refusal to dismiss, the refusal to direct a verdict for the defendant, to the charge and the refusals to charge otherwise, but, on examination, they all appear, in so far as they involve any substantial point whatever, to relate to the same
p. 128question, namely, the sufficiency of the evidence upon the question of performance to carry the case to-the jury. If the evidence was insufficient for that purpose, the complaint should have been dismissed or a verdict directed for the defendant.
The complaint alleged an employment to procure a party or parties to lease the four lots of land of the defendant.
The answer admitted that plaintiffs applied to defendant for authority to offer on her behalf to the trustees of common schools for the Twelfth Ward of the city of New York, to lease to them the said lots upon some arrangement under which the defendant was to put up a building thereon, and that the defendant consented thereto.
Upon the trial the defendant admitted that plaintiffs were employed by her to procure a lease, and that they did procure the execution of the paper marked “plaintiffs’ exhibit No. 4 of May 7th, 1891,” and upon this appeal the counsel for the defendant, in his brief, expressly waives the point that the defendant was induced by false representations to sign the said paper, and also the further point that the plaintiffs impeded and delayed the defendant from beginning work on said building.
The paper referred to is an agreement executed under seal between the defendant as party of the first part, and the trustees of common schools for the Twelfth Ward of the city of New York, parties of the second part. It provides first for the erection, by the party of the first part, on the lots in question, of a building in accordance with certain plans to be approved by the superintendent of school buildings, and then concludes as follows, viz:
“ And the said party of the first part, for the consideration aforesaid, hereby further agrees that when the said building shall be so completed and approved of by the said superintendent of school buildings, she will
p. 129then make and execute a lease to the said parties of the second part, of the said building and lots of land, for the term of ten years, from the time of such completion and approval, and at annual rent therefor, to commence from that time, of eight thousand dollars and taxes, with the privilege to said parties of the second part of a renewal of said lease for an additional term of ten years, at the same annual rent and taxes, said lease and renewal to contain the usual fire clause.
“ And the said parties of the second part, for and in consideration of the foregoing agreement of the said party of the first part, hereby agree that if the said budding is so erected and completed, as above mentioned, and is approved of by the said superintendent of school buildings, they will then, on their part, execute the said lease.
“ In witness whereof, etc., etc.”
It thus appears that the plaintiffs, by their efforts, brought the parties together; that they procured a lessee ready and willing to take the premises as they had undertaken to do ; and that the meeting of the parties resulted in the execution of a contract under seal for the leasing of the premises. That was all the plaintiffs could do as brokers.
It was no part of their duty as brokers to see that the defendant put up the building or complied with the terms of the contract on her part, and hence the subsequent inability of the defendant to put up the building and the recission of the contract by the mutual consent of the parties in consequence of such inability, cannot be charged against the plaintiffs in the absence of an express agreement to the effect that they should have no compensation unless the contract between the parties was fully performed. Hodgkins v. Mead, 29 N. Y. State Rep., 671; Bach v. Emerich, 35 N. Y. Superior Ct. R., 548; Simonson v. Kissick, 4 Daly, 143 ; Glentworth v. Luther, 21 Barb., 145 ; Barnard v. Monnot, 1 Abb. Ct. App., 108 .
p. 130There having been no express agreement in this case that the plaintiff should have no compensation unless the contract between the defendant and the trustees was fully carried out, the trial judge properly refused to dismiss the complaint or to direct a verdict for the defendant, and the case was properly submitted to the jury.
The record discloses no exception which is tenable.
The judgment and order should be affirmed, with costs.
McAdam, J., concurred.