
    Louis Herbert Lucas, Respondent, v. Andrew H. Smith, Appellant.
    Second Department,
    May 4, 1906.
    Principal and agent — when architect entitled to commissions on procuring capitalists willing to finance hotel to be built on defendant’s land—pleading — when complaint'alleges due performance..
    An architect, who has been promised professional employment by a landowner in erecting a hotel on the consideration of his procuring capitalists willing to finance the scheme, is entitled to recover of the owner when he lias succeeded in bringing about an agreement for the erection of the hotel between the owner and capitalists willing and able to perform. After all the details of the plan have been agreed upon and the minds of the parties have met, the owner cannot defeat the architect’s right to commissions by refusing to sign a formal • agreement because of the unwillingness of the capitalists to accede to additional demands.
    Although the complaint alleges a right to commissions dependent upon an agreement to erect a hotel upon the “land then owned by” the defendant, it does not fail to allege performance because the proposed hotel was to be built partly “ upon land of other parties ” when such other lands became necessary to meet the requirements of all concerned.
    Appeal by the defendant, Andrew H." Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in-the office of the clerk of the county of Westchester on the 21st day of April, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      H. B. Closson, for the appellant.
    
      Isaac N. Mills, for the respondent.
   Woodward, J.:

The facts in this case, which are comparatively simple, and which have been found by the jury, have been discussed with impressive elaboration, on the part of counsel, without showing any conclusive .reason why the judgment in favor of the plaintiff should be disturbed. The plaintiff' is an architect. He had been employed by the defendant and the defendant’s son (who was an original party to this action, but who has since died, the action being continued against the defendant alone) in making some alterations' in buildings located at Forty-second street, near Madison avenue, in the ■borough of Manhattan, and, while thus employed, had learned that the defendant had in mind the use of the premises as a site for a hotel. Knowing this fact the plaintiff entered into negotiation with the defendant to find capitalists' who would he willing to construct the hotel upon the defendant’s property,, and it is not disputed that the defendant contracted with the plaintiff that if the latter would secure the capitalists who were ready, willing and able to construct á hotel upon the premises in accord with the defendant’s ideas, thé plaintiff should be compensated by being employed as architect upon the building, at the usual rate of five per cent upon the cost of construction, although the defendant now contends that the contract was that he would use his influence to secure such employment by the company which was to be organized for the purpose of constructing the building, but this is entirely immaterial, for upon the facts Avhich the jury must ’ be deemed to have found, the plaintiff was actually employed for this purpose,, and he brings this action to recover damages for a breach, of this contract, due to the defendant withdrawing from the arrangement which was duly entered into after protracted negotiations.

It is conceded that it was the duty of the plaintiff, in order that he be entitled to compensation, that the agreement should he.proved that he was to be given the employment as architect upon finding the capitalists who were ready, willing and able to enter into the scheme upon terms to' be agreed to by the defendant; that it was necessary to show that" the plaintiff found such .capitalists and brought them into relations with the"defendant which resulted in a, mutual agreement for the construction of the hotel, and that the enterprise failed of being carried out, not because, the capitalists refused to go tin, but because the defendant refused to go on, and to execute the written contract which would have bound him as against the capitalists. These various propositions were fully established by the evidence, under a charge which was. certainly as favorable to the defendant as he was entitled to, and Ave are persuaded that the judgment and order appealed from should not be disturbed by this court.

It sehms that the defendant and his son OAvned a certain piece of real estate on Forty-second street, near Madison avenue, nearly opposite the Manhattan Hotel, and they had conceived the idea of constructing a new hotel of the same general class upon their premises, but lacked the necessary capital. The plaintiff, knowing these facts, upon a definite employment undertook to find the capital, and it is not disputed that he did find capitalists who were ready, willing and able to finance the undertaking upon terms which were satisfactory to the defendant, the final agreement being reached on the 25th day of June in the year 1901. This agreement, which went into the details of the scheme, and which contemplated the purchase of certain other property adjacent to that,of the defendant, is to be spelled out of certain correspondence between the various parties who were interested as capitalists and as tenants of the proposed hotel, it being arranged that a company should be ' organized to' conduct the same and to have a lease of the property for a period of twenty-one years, with rentals ranging from §110,000 the first year to $130,000, and from the testimony of the parties as to what took place at the meeting of June 25, 1901, when all of the parties interested were present, it cannot be doubted that there was, on this date, a full meeting of the minds of the parties upon a definite scheme for the construction of a hotel to cost $850,000. This plan was so well worked out at this meeting that directions were left for reducing the same into writing for the purpose of signature, and it was agreed that one Mr. Ohesebrough should become the manager of the contracting parties, for the purpose of ' determining any matters of detail _which might arise. Immediately 'after this meeting the defendant and his son telegraphed and wrote letters withdrawing from the scheme, but subsequently made demands for further concessions in relation to matters which were either not before the meeting of June twenty-fifth or had been determined differently at such meeting. Some of these were acceded to and the defendant evidenced great anxiety to have the contract as thus modified at his request put into force at once, but he seems to have had reactionary periods, and before any contract was actually signed, binding as between the parties, he repudiated the whole transaction and the enterprise failed. At the meeting of June 25, 1901, it was agreed among the contracting parties that the plaintiff should be employed as architect in the construction of the ' hotel/ and the scheme having fallen because of the retirement of " the defendant, the plaintiff claims the' right to the value of liis contract, and the jury.has found the facts in his fa vor. It has been established by a long line of judicial decisions, clearly and concisely stated in Sibbald. v. Bethlehem Iron Co. (83 N. Y. 378, 382), that the “ fundamental arid 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, anclthe price and terms on which it is to be made, and until that is.done his right to commissions does not accrue.” This is the rule to be applied in the present case, and the plaintiff has fully established by the evidence that he brought about an agreement between the defendant and certain capitalists, whose ability to perform is not .questioned, by . which the defendant was to., have a certain fixed interest in.the hotel property which was to be brought into existence under the terms -and* conditions of such agreement. Why, •tliep, should there be any question as to his right to the benefits of his contract? . The contract between the parties provided that he •should be employed as .architect, and the- defendant has defeated that ‘employment by refusing to comply with the terms of his agreement with the capitalists who were brought into the enterprise by the plaintiff, acting in behalf of the defendant.

The defendant urges on this appeal that the court should have dismissed the complaint at the opening of the case/ because it is ■ alleged.that.it does not. state facts sufficient to. constitute a cause of action. This contention is based oh the proposition that the plaintiff alleges that his right to commissions- depended upon his procuring Satisfactory arrangements for “ the erection of a hotel structure upon said land then owned by said defendants,” and that it is ■not alleged that, the plaintiff ever performed this undertaking. This is suggested because the plaintiff-.alleges that the hotel to be constructed, was to. be built in part “upon land of other parties.” An examination of the. pleadings, which are to be fairly- and intelligently construed, shows that the plaintiff alleges the employment under the terms heretofore mentioned to, procure the. capital to construct a. hotel upon the premises owned by the defendant, and that lie alleges a performance of these conditions . by procuring certain individuals and corporations who were ready, willing and able to construct such hotel upon terms agreeable to the defendant upon such premises and upon. premises subsequently purchased by the defendant, and upon lands owned by other parties, and this was fully established by the evidence. It is entirely plain that as the plan developed it became necessary to have other lands to meet the requirements of all tlie parties. The hotel was to be constructed upon the lands owned by the defendant and on such other lands as should be acquired under the terms of the agreement, and when the plaintiff ;had brought about the agreement of' the parties he had earned his commissions.

We have examined the various points suggested by defendant, but none of them appears to us to justify a reversal of this judgment, which seems to be in harmony with the law as expressed in Sibbald v. Bethlehem Iron Co. (supra, 383, 384, and authorities cited).

The judgment and order appealed from should be affirmed, with, costs.

Present — Hirschberg, P. J., Woodwabd, Hooker, Rich and Milleb, JJ.

J udgment and order unanimously affirmed, with costs.  