
    Lyman P. French, App’lt, v. Brush-Swan Electric Light Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 26, 1891.)
    
    1. Broker—Purchaser—Commissions.
    The defendant was the owner of certain electric light processes or appliances, the exclusive right to use which it was desirous of selling, and it addressed a letter to plaintiff, hy which he was authorized to sell the same. He procured a purchaser therefor, on condition that the process after a test, should he found to do as represented. The battery employed failing to come up to representations, the purchaser refused to complete the purchase. Held, that the plaintiff had not produced a purchaser ready, willing and able to purchase, and was thérefore not entitled to commissions.
    3. Same—Subject oe sale—No guaranty oe pereection.
    In such case the question as to the failure of the battery to work, was entirely immaterial with respect to defendant’s liability for commissions as in the contract of employment there was no guaranty by defendant that the battery would work.
    Appeal from judgment entered upon decision after trial before the court without a jury.
    
      W. S. MacFarlane, for app’lt; Evarts, Choate & Beaman (W. G. Wilson, of counsel), for resp’t.
   Van Brunt, P. J.

—It may not be at all necessary to add anything to the opinion of the court below; but in .view of the argument made by the counsel for the appellant, it may be proper to-emphasize one or two points adverted to in said opinion.

It is claimed that the plaintiff having been employed by the-defendant to effect a sale of the rights mentioned in the complaint, and having produced to his principal a customer who was. at all times able, ready and willing to purchase for the price and upon the terms fixed by and satisfactory to the principal, is-entitled to recover his commission.- If this proposition were borne out by the facts established by the evidence, undoubtedly the plaintiff might recover. But upon an examination of the-case it will be seen that there is one important element assumed in this proposition which is not established by the evidence.

The defendants were the owners of certain electric light pro- ' cesses or appliances, the exclusive right to use which they were desirous of selling, and they addressed a letter to the plaintiff by which he was authorized to sell the exclusive right to use these appliances in a certain territory for the sum of $150,000. It appeared that subsequent to this time the plaintiff procured certain parties to enter into a conditional contract, whereby the parties produced should have the option to purchase these rights for $150,000, after it had been clearly demonstrated by actual experiment that the process would do that which it was represented to do. The battery employed failing to come up to the representations-was the sole cause of the non-completion of the sale, the parties, produced by the plaintiff refusing to complete the purchase upon that ground.

The contract of the defendants with the plaintiff was, that he was to effect a sale of these rights, and, in order to entitle himself to compensation as for a fulfilment of the contract, he was. bound to produce some person ready and willing and able to-purchase. This the plaintiff has not done. All that he produced were parties willing to purchase conditionally, and the condition not being fulfilled, they were not willing to purchase.

In the employment of the plaintiff there was no guaranty as to-the sufficiency of these appliances. He was simply to sell the right to use them. He did not sell, and it is immaterial what may be the cause. This right to compensation was not established till he effected a sale.

The question as to the failure of the battery to work, which was the cause of the refusal of the parties to purchase, was entirely immaterial. In the contract of employment, as already stated, there was no guaranty by the defendants that the battery .would work. The circular to agents issued by the defendants, which contained a description of these machines, in no wise altered the question. It was a representation by the defendants, it is true, of what they claimed their machines would do; but a person accepting a commission to sell these machines, was not guaranteed, bv reason of this circular, that the machines would da that which the circular represented. Consequently the failure of the proposed purchaser to take because not satisfied with the machines, put an end to any claim for commissions which the producer of the proposed purchaser might attempt to establish.

We think, therefore, that the judgment was correct, and should be affirmed, with costs.

Barrett and Patterson, JJ., concur.  