
    Pearsall v. Hirsh et al.
    
    
      (Superior Court of New York City, General Term.
    
    May 4, 1891.)
    Real-Estate Agents—Fiduciary Capacity—Liabilities to Employes.
    Defendant was employed to effect a purchase of real estate at a price not to exceed §51,000, and to take a contract therefor in his own name, to be assigned to-plaintiff. Held that, having used all reasonable efforts to obtain said property for plaintiff at the limited sum, without success, he had a right to purchase the same-for himself at the sum of §53,000, the contract of employment fixing the law of the-case without regard to the fiduciary relation of the parties.
    Appeal from special term.
    Action by Pliebe Pearsall against Jacob Hirsh, Alois Gutwillig, and James1 F. Ferguson. The plaintiff appeals from an order sustaining a demurrer to the complaint, and from an interlocutory judgment, entered thereon.
    Argued before Sedgwick, C. J., and Freedman and McAdam, JJ.
    
      Henry L. Burnett and Edward B. Whitney, for appellant. Max Stern, (Elliot Minor, of counsel,) for respondents.
   Per Curiam.

The complaint averred that the defendant was and is the owner of a certain described lot; that on, etc., by agreement in writing bearing date on that day, plaintiff employed the defendant Hirsh as her agent for the purchase of said premises from the defendant Ferguson, at a price not to exceed $51,000, and agreed to pay Hirsh for his services in securing a contract of sale from said Ferguson (the same to be taken in his own name, to be assigned by him to plaintiff) the sum of $500, etc., and by which said contract said Hirsh agreed to make all reasonable efforts to purchase said lot of said Ferguson for plaintiff, as above stated; that thereafter Ferguson entered into a contract under seal to sell the said lot to defendant Gutwillig for $52,000; that defendant Gutwillig is personally related to defendant Hirsh, and defendant Hirsh is the real party in interest. The complaint, after proffering what was equitable on the part of plaintiff, demanded, judgment that plaintiff is entitled to an assignment of the contract of sale; that such assignment be made; and enjoining the defendants, and each of them, from conveying the contract or the property. Possibly it might be enough to determine the demurrer that complaint did not state a cause to consider the conclusive legal effect of the contract of sale to defendant Gutuillig, under such decisions as that of Briggs v. Partridge, 64 N. Y. 357. By those decisions, as matter of law, the only parties having a legal interest-in a sealed contract are those that sign it, but, as the proposition was hot-discussed on the argument, it will not be made the ground of the decision, here. The defendant Hirsh, having become the agent of the plaintiff, would, if there was no limitation by the rest of the contract, have been held to the-performance of the obligations of an agent; and it will be assumed that while-an agent he could not deal in respect of the property to his own advantage, without becoming liable to his principal, the plaintiff. The maxim, legemenim, contractus dot. By the contract, and not because such would have-been his duty as agent to purchase for plaintiff, he was to obtain a contract, in his own name for the purchase price of $51,000, and assign it to the plaintiff, and to that end to make all reasonable efforts to purchase said lot. By the contract, if Hirsh was unable, by all reasonable efforts to purchase^ to procure a contract at a price of $51,000, he fulfilled the obligation of the contract on his part, and could not be compelled under the contract to assign an agreement for sale for $52,000; the terms being that in plaintiff would become assignee of it if it were for $51,000. If, indeed, Hirsh, through Gutwillig, bought at $52,000, not having made all reasonable efforts to purchase at $51,000, that, perhaps, might justify an action for damages from Hirsh’s breach of the contract. The complaint does not set forth such a cause of action. The allegations of the ebmplaint would not uphold the judgment that is demanded by it. Judgment and order affirmed, with costs.  