
    Charles Rohner, Respondent, v. Philip Lenisch, Appellant.
    (Supreme Court, Appellate Term,
    October, 1899.)
    Principal and agent — Real estate broker must procure a meeting of the minds of the principal and the third party on all the terms of the contract.
    A real estate broker is not entitled to commissions on a sale unless he has caused the minds of the contracting parties to meet on all the terms; and where, upon an alleged sale of a lease of a saloon and the furniture thereof, which was subject to a mortgage, it appears that, while the parties had perhaps agreed as to the payment to be made, they failed to agree as to a disposition of the conceded rights of the mortgagee in and over the lease, the broker has not procured a sale nor earned commissions of his principal.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court, tenth district, borough of Manhattan, entered upon a verdict by a jury.
    P. & D. Mitchell, for appellant.
    Schmuck & Graham, for respondent.
   Fbeedman, P. J.

The defendant herein appeals from a judgment rendered in favor of the plaintiff in an action brought to recover for commissions alleged to have been earned as a broker in procuring a purchaser for the lease and furniture of a saloon in this city.

The material facts in the case are substantially undisputed, and are as follows:

The defendant was engaged in the saloon business at Columbus avenue and One Hundred and Einth street, having a lease of the premises for ten years, of which nearly two years had expired. There was a mortgage upon the furniture and that, together with the written lease of the premises, was in the hands and at the office of the Lion Brewing Company, the mortgagee. After repeated solicitations on the part of the plaintiff to be allowed to find a purchaser for the lease and furniture, the defendant authorized him to make a sale thereof for the sum of $10,000.

During the several conversations had between the parties leading up to the authority given the plaintiff to sell, the defendant stated that the lease had eight years longer to run, and that the rent was $1,500 per year. After the plaintiff had made some efforts to sell the property, he informed the defendant that two persons, named Blumberg and Dreyer, had agreed to give $8,000 for the property,, and after several conversations upon the subject of the price, the-plaintiff testifies that the defendant said “ bring them over.” Subsequently the plaintiff brought Dreyer to the defendant’s house and1 introduced him to the defendant as the proposed purchaser, and said to the defendant “ get yourself ready, we want to go to the Brewery and settle the matter up.” Prior to this time, the plaintiff had' conducted all the negotiations regarding the sale with one Bucher, who was a partner of Dreyer, and Bucher had communicated toDreyer all that had been said *3 him by Bohner (the plaintiff)regarding the terms of sale.

Bucher had been to the brewery and had ascertained the amount of the mortgage upon the property, and as Dreyer testified “ to see-what papers they had.”

The plaintiff testifies that when he introduced Dreyer to the-defendant as the proposed buyer, and as the person who would pay $8,000 for the property, the defendant said “ well, we will see, we will go up to the Brewery and settle it.” Dreyer swears that he got his information relative to the property, terms of sale, etc., fromBucher, and that at the time he went to the defendant’s honse withBohner, “ from there we intended to make the bargain at the Brewery.” He also testifies that when Bohner told Bucher that the-

rent was $125 per month, Bucher replied that “ he (Bucher) thought he (Rohner) had made a mistake.” After the introduction of Dreyer to the defendant, the parties went to the brewery, and after some conversation between the defendant and Dreyer, the sale was not made, Dreyer saying that he refused to take the property for the reason that the lease provided for an increased rental from $1,800, the second two years of the term, to $2,000 for the remainder. It is evident, however, that such was not the real reason for his refusal to complete the purchase. The proof shows that he knew the terms of the lease, as Bucher, his partner, had been to the brewery prior to this time and had seen the papers and communicated their contents to him.

There is another view to be taken of the testimony. The plaintiff’s right to commissions depended upon his finding a purchaser able, ready and willing to take the property upon the terms fixed by the owner. This implies and involves the agreement of the buyer and seller, the meeting of the minds of the parties, produced by the agency of the broker. The broker assumes the risk of his inability to accomplish that result.

If he presents to the seller a person who is ready and willing to enter into a contract upon the terms which the seller has dictated, he has done his duty, and is entitled to his commissions although the sale has not taken place, if it fails because the seller capriciously changes his mind after the purchaser answering to the prescribed terms has been produced. Moses v. Bierling, 31 N. Y. 462.

In the case at bar that situation does not present itself. The statement made at the time when the plaintiff was urging him to be allowed to sell the property, that the terms of the lease were $1,500 per year for the first two years of the term and $1,800 for the remainder,. should be regarded under all the facts and circumstances, as the expression of an opinion and not the unqualified representation of a material fact relied upon by both the broker and the purchaser’. The plaintiff knew that the lease, the principal subject of sale, was at the brewing company’s office, and he could easily have ascertained for himself its exact terms.

Moreover, the testimony is clear and convincing that it was understood by the broker, the buyer and the seller, that the brewing company had certain rights in the lease, and that a visit to, and some arrangement with, that company must be made before the trade could be finally completed.

The minds of the parties had not met, except possibly as to the amount to be paid, prior to the visit to the office of the brewing company, and did not meet thereafter, and it does not appear that the defendant changed his mind after the terms of sale had been discussed.

The judgment must be reversed.

MaoLean and Leyentritt, JJ., concur.

Judgment reversed, new trial ordered, with costs to appellant to abide event.  