p. 316have been submitted under proper instructions. Upon the new trial the evidence that had been rejected upon the former trial was admitted, and upon the question of fact that it raised, the jury found adversely to defendant upon sufficient evidence.
Held, that whether the transaction was or was not a sale, was upon all the evidence a question for the jury, as was also the question of plaintiff’s instrumentality in bringing it about, and the jury having found these facts in favor of the plaintiff, he became, in law, entitled to his commissions.
Before Dugro and Gildersleeve, JJ.Appeal from judgment entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.
William M. Ivins, attorney, and W. W. MacFarland o f counsel, for appellant, argued:—
I. What the contract was. In order to ascertain what the contract was, it is necessary to go somewhat beyond the writing signed by the defendant, and consider what took place between the parties previously. The negotiation concerning the matter in question which took place before the writing was signed was between the plaintiff and Samuel B. Dickson, the attorney in fact of the defendant. The plaintiff testified, in substance, that he met Mr. Dickson in January, 1887 (the writing bears date May 10, 1887). He had a conversation with Mr. Dickson concerning the sale of the land ; he says, “ he authorized me to go ahead and sell the lands; the price asked was ten cents an acre; he agreed to pay me a commission of ten per cent.” On the 10th of May, 1887, an agreement in writing between the defendant and Jere Baxter was executed, by which an option to purchase was given to the latter. The plaintiff then suggested to Dickson that he would like to have the
p. 317arrangement between them confirmed by the defendant in writing. Dickson said : “Ton draw it up and I will take it to her.” Thereupon the plaintiff prepared the writing in question. Dickson says that the agreement made and intended to be expressed was that the plaintiff was to receive as his commission 10 per cent, of what the defendant accepted, realized and received, but it may be conceded for the purposes of the case that the terms of the memorandum express fully the agreement •, nothing turns upon the slight variation for it is admitted that if an actual sale of the lands unconditional and complete had been made the plaintiff would have been entitled to commissions though the sale was on credit and payment never realized. It is assumed, then, that the whole contract is contained in the writing prepared by the plaintiff himself and signed by the defendant. In that writing defendant says : “ I hereby agree to pay you a commission of ten per cent, on the price I may accept for the land if sold through your agency. I acknowledge your agency in bringing Jere Baxter and his associates to me, whereby a refusal until September 10th next was given by me.” This was the whole of the contract, according to the plaintiff’s own contention, and, in construing it, it is important to bear in mind that the words are his own. No commission is payable under this contract unless the land is sold; there must be an actual sale ; an executory contract for sale never carried out is plainly not sufficient. The complaint assumes such to be the true construction, and alleges an actual sale. The opinion of the Court of Appeals proceeds upon the same interpretation. When the broker himself does not effect a sale, but merely brings parties together, his right to commissions is wholly contingent upon the result of their negotiation, over which, however, he can exercise no control, and to which he is in no sense a party (Opinion Court of Appeals, 123 N. Y., 469 ). If parties enter into an executory contract of
p. 318sale, commissions are not earned and payable at that stage of the affair. If for any reason the contract never results in a completed sale, no commissions are earned, for the parties, so far as the broker is concerned, are at liberty to do as they please in the premises, and the broker is only concerned in the ultimate result. They may, for example, agree to abrogate the executory contract without giving him any cause of complaint. Sibbald v. Bethlehem Iron Co., 83 N. Y., 388 . Fraser v. Wyckoff, 63 Ib., 445. 1 Parsons on Contr., 7 ed., p. 109, and notes. The court takes judicial notice of real estate brokers, their customs and usages. Eaton, Cole & Burnham Co. v. Avery, 83 N. Y., 31 . The precise question, therefore, is whether upon the evidence there was an actual sale of the property or merely an executory contract for sale never carried out. In the discussion of this question it will be assumed that the contracting parties were brought together by the plaintiff, so that he would have been entitled to commissions if an actual sale had followed.II. The land was not sold. It is obvious that no sale was consummated unless we are able to find a contract, the non-performance of which, by the one party or the other, would give rise to an action for specific performance or damages, as the case might be. There was not a completed sale on credit; the title remained in the grantor; the grantees might carry out the contract for sale or not, at their pleasure, under pain of a stipulated forfeiture, or, for just cause, if the abstract proved to be inaccurate. The executory agreement for purchase never was carried out; that is proved and not disputed. It should be observed here that the plaintiff is not concerned with the reasons why the sale fell through ; it is the fact that it was not completed that affects him. The writings distinctly inform us that there was a collateral understanding of some kind between the defendant and Millikin and Wolffe, and the Court of Appeals has de
p. 319cided that parol evidence is admissible to prove what it was, and so ascertain the meaning and intention of the parties as to the consummation of the transaction. It has also been decided that when all the evidence is in, the plaintiff’s right to recover will depend upon whether or not it shows an actual sale of the property, and that he is not entitled to recover if the obligation to pay the drafts and take the title was in fact conditional. The proof that it was so is clear and undisputed, and therefore the case stands upon no controverted facts, no conflict of evidence, and presents only a question of law arising upon the construction of established facts. The abstract of title was to be verified, for nothing but quitclaim deeds were to be given by defendant, and it was the understanding that unless the abstract was found to be correct on examination the agreement for sale was to be abrogated. It was conclusively established as a fact and by the plaintiff’s own evidence that there was no actual and completed sale of the property, but only an executory contract of sale. There was no controverted question of fact to go to the jury, and the case presented when the evidence was in only a question of law for the court. On this point the Court of Appeals decided only that the writings were open to explanation by parol evidence, not that the case must go to the jury whether there was any conflict of evidence or not. . As it. turned out, there was no question of fact to be submitted to the jury, but only a question of the legal construction of certain papers taken in connection with certain undisputed collateral facts.
III. No commissions were earned by the plaintiff. But little remains to be said on this point. The conclusion is one of law, to be drawn from facts proved and wholly undisputed. The Court of Appeals has decided (a) that the writings in question were somewhat ambiguous ; (6) that on the face of the writings there was a strong indication that the transaction did not
p. 320amount to a completed sale, and that there were unexpressed conditions ( 123 N. Y., 46 ,47) 5 (c) that if there were, it was allowable to prove by parol evidence what they were ; (cl) that if such should prove to be the case and the sale fell through there could be no recovery. It is now established beyond dispute that such was the case, for there was simply a failure to carry out an executory arrangement. Finally, it is submitted, that as a conclusion of law, from evidence wholly uncontradicted and undisputed, the lands were not sold, within the meaning of the agreement with the plaintiff for commissions; that the motion for a nonsuit should have been granted, and that there should be a new trial.Cannon & Atwater, attorneys, and Henry G. Atwater of counsel, for respondent, argued :—
I. The evidence is sufficient to justify the verdict. It will not, of course, be contended that there was not evidence on the trial which might have justified the jury in rendering a verdict for the defendant, but taking the evidence in the plaintiff’s favor and giving to it such construction as the jury were justified in placing upon it, there seems no difficulty in sustaining the verdict.
II. The real gist of the transaction was this: The defendant had for sale a certain alleged title which was stated in a certain abstract, and this title she employed the plaintiff to sell. The plaintiff by his exertions made a sale of it to Wolffe and Millikin, who afterward refused to complete their purchase because the defendant could not deliver to them the title which she had agreed to sell them. That the plaintiff by his exertions procured to be made whatever contract was made is plain enough. No one can read his evidence without seeing that the verdict upon this point is beyond any doubt. The defendant’s contention is that the defendant did not claim to have any-title to these lands, or at least not any particular title or chain of title, and that all she agreed to
p. 321sell was such title as it might he discovered she had, and that Wolííe and Millilrin were not obliged to buy unless upon examination they found her title was satisfactory to them. This, however, is contradicted, not only by all other facts in the case, but also especially by the fact that the defendant having been sued by Wolffe and Millikin to get back the cash and acceptances on the ground of the misrepresentation as to title, returned the acceptances and made arrang’ements to payback the cash. This is entirely sufficient to refute any claim that they could still retain the cash as damages for breach of contract, even if they did not have the title set out in the abstract. The jury upon all this evidence were justified in finding that what Condict was employed to sell was a title such as was set up in the abstract furnished by the defendant; and that Condict in fact did find a purchaser who was willing to buy that title at the price named. The jury having so found, the plaintiff became in law entitled to his commissions. Where a broker employed to effect a sale has found a purchaser willing to take upon the terms named and of sufficient responsibility, he has performed his contract and is entitled to the commissions agreed upon. Duclos v. Cunningham, 102 N. Y., 678 ; Lloyd v. Matthews, 51 Ib., 124; Mooney v. Elder, 56 Ib., 240; Sibbald v. Bethlehem Iron Co., 83 Ib., 378, 382, 384. The broker is entitled to his commissions although the purchaser refuses to take the property on account of an alleged defect of title. Knapp v. Wallace, 41 N. Y., 477 . Or on account of alleged misrepresentations made by the seller in regard to the property. Glentworth v. Luther, 21 Barb., 145 ; Holly v. Gosling, 3 E. D. Smith, 262. In this case the uncontradicted evidence showed that the plaintiff had found a purchaser able and willing to buy on the terms named. Upon these facts he was entitled to his commission.This action is brought, by plaintiff to recover from defendant commissions alleged to have: been earned under a certain agreement between himself and the defendant, relating to the sale of lands. The plaintiff is a real estate broker; and, in January, 1887, was introduced to one Samuel A. Dickson, who, at that time, was agent and attorney in fact of defendant, and represented her in relation to all matters connected with the Kentucky lands, which the plaintiff was employed to sell. At this interview, Mr. Dickson gave Mr. Condict a list of the lands, showing the lands in each county and the original sources of title. Mr. Condict soon succeeded in interesting in the matter one Jere Baxter, with whom was associated one W. A. Millikin; and the defendant gave Baxter an option on the land to September 10th at ten cents an acre ; which option was subsequently extended. About this time, the plaintiff asked for an agreement in writing from defendant, and thereupon defendant gave plaintiff a written agreement in the following terms: u To Jonathan D. Condict, Esq., 145 Broadway, New York. Sir: I hereby agree to pay you a commission of ten per cent, on the price I may accept for the 435,000 acres of land in Eastern Kentucky, belonging to me, if sold through your agency. I hereby acknowledge your agency in bringing Jere Baxter and his associates to me, whereby a refusal until September 10th was given by me. Jane H. Cowdrey.”
It was claimed, in behalf of defendant, upon the trial, that plaintiff was not the moving party in the transactions that took place between.the defendant and others, which, plaintiff claimed, were the consummation showing that he had earned his commission. There was some conflict of evidence as to whether Millikin, as well as Baxter, was first introduced to Dickson by plaintiff. On this question the jury, as indicated by their verdict, found in favor of plaintiff’s contention; the evidence
p. 323justifies their finding and is conclusive upon this question.
The employment of the plaintiff by defendant not being disputed, and assuming that whatever contract was made with Wolffe and Millikin came through the plaintiff’s instrumentality, this question remains : Was the latter contract such a one as constituted a fulfillment of plaintiff’s contract with defendant, and entitled plaintiff to his commissions? The written evidence of the contract with Wolffe and Millikin, in reference to the Kentucky lands, consists of two papers ; one a receipt, and the other an agreement for a deposit in escrow. Upon a previous trial of this action, the court held that all prior negotiations were merged in these two papers; that they established a contract for the sale and purchase of the Kentucky lands, and directed a judgment in favor of the plaintiff, awarding him his commissions. When the case reached the Court of Appeals, that court held ( 123 N. Y., 463 ), as follows : “ If that construction was correct, the judgment awarded was an inevitable result; but the defendant claims that the writings showed merely" an option or privilege, for which the alleged vendees paid the sum of two thousand dollars, and which left them at liberty to purchase or to refuse to purchase, at their own choice and pleasure, and so the minds of the parties never met, and the broker’s efforts to effect the sale failed of success.” The learned appellate court was in doubt as to what construction should be given these two papers, read together, in the light of such surrounding facts and circumstances as were proved; but it did not hold that the construction given by the learned trial judge was erroneous.
Upon the first trial, the defendant insisted “that there was an unexpressed condition upon which the writings were delivered,” asked to prove that fact, and so establish what she claimed was the whole and complete con
p. 324tract. In truth, the defendant did introduce parol evidence, upon the first trial, tending to establish the
u unexpressed condition ” she claimed existed ; but, upon final consideration, this parol evidence was rejected by the court on the ground that the writings were conclusive. The Court of Appeals held that this ruling was erroneous, and for the error reversed the judgment. The Court of Appeals say that the rejected evidence of Mr. Dickson, the defendant’s agent, if true, would show that what appears upon the face of the papers to have been an agreement of sale, is in reality a privilege to purchase at a fixed price, or to refuse to purchase upon the forfeiture of a definite sum ; or what seemed to be an agreement of sale, was in truth a mere option to purchase.
. . . “ In other words, there was no absolute contract of sale, but merely an option.” The Court of Appeals further says : “ This evidence was contradicted, and so there arose a question of fact for the jury, which should have been submitted to them under proper instructions.”
No exceptions were taken to the admission or rejection of evidence in the course of the trial, and no exception was taken to the charge of the learned trial judge. The evidence above mentioned, that had been rejected upon the former trial, was admitted, and upon the question of fact that it raised the jury found adversely to the defendant, upon sufficient evidence.
We are of the opinion that whether the transaction was or was not a sale, was, upon all the evidence, a question for the jury, as was also the question of plaintiff’s instrumentality in bringing it about.
The jury having found these facts in favor of the plaintiff, he became in law entitled to his commissions.
Where a broker employed to effect a sale has found a purchaser willing to take upon the terms made, and of sufficient responsibility, he has performed his contract, and is entitled to the commissions agreed upon. Duelos
p. 325v. Cunningham, 102 N. Y., 678 ; Sibbald
v. Bethlehem Iron Co., 83
Ib., 378.
We reach the conclusion that the judgment and order should be affirmed, with costs.
Dugro, J., concurred.