
    Baxter Morton, Appellant, v. Charles Henry Witte and Mathilde Witte, Respondents.
    Second Department,
    November 17, 1911.
    Contract — exchange of lands for automobile — delivery of contract — acknowledgment not necessary — when contract complete although not reduced to writing—waiver of failure . to deliver contract as agreed — damages—brokerage commissions — expenses of examining title.
    Where a defendant who had agreed to exchange lands for an automobile owned by the plaintiff delivered to the plaintiff’s attorney duplicate contracts signed by him, and on the day set for closing the agreement.plaintiff’s attorney produced' and tendered to the defendant one of the duplicates signed by the plaintiff, together with a bill of sale of the motor car, there was a sufficient delivery of the contract, although there was no physical delivery thereof owing to the fact that the defendant refused to close title because the contract was not acknowledged.
    Acknowledgment is not necessary to the validity of such contract as it relates .only to proof of execution thereof.
    
      Even though there had been an understanding that the contract should be formally drawn up and put in writing, the transaction was not incomplete, and without binding force in the absence of a positive agreement that it should not be binding until reduced to writing and formally executed.
    Although the plaintiff’s attorney was to deliver the contract signed by him at a certain time before closing day, yet there was a waiver by the defendant where he attended the meeting on closing day and raised no objection to the failure to deliver before that time.
    In an action by the plaintiff for a breach of such contract he cannot recover brokerage commissions paid to his attorney where such expense was not connected directly with the contract and was not within, the contemplation of the parties.
    But as the. defendants were required to furnish á warranty deed at the plaintiff's expense, he is entitled to recover the expenses of examining the title.
    But the expense of examining title is not determined by the amount the plaintiff chose to pay an attorney for such services.
    Appeal by the plaintiff, Baxter Morton, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn in favor of the defendants, rendered on the 5th day of April, 1911.
    
      John R. Jones, for the appellant.
    
      Siegmund Rosenthal, for the respondents.
   Jenks, P. J.:

The plaintiff appeals from a judgment of the Municipal Court for the defendants on the merits. The action is for damages for breach of a contract that provided for an exchange of defendants’ realty for a motor car owned by the plaintiff. The defendants contend that there was not a completed contract.

The plaintiff. was represented in the negotiation by Mr. Jones, an attorney. On closing day the plaintiff, Mr. Jones, the defendant Mr. C. Witte and Mr. Erdtman met. Theretofore the defendants had signed a contract in duplicate and had given one of them to Mr. Jones, who promised to obtain the signature of the plaintiff to a duplicate.. On the said day Mr. Jones produced a contract signed by the plaintiff, showed.it to Mr. Erdtman, who read it and said that “he wouldn’t close the title because the contract was not acknowl edged. ” The plaintiff tendered a bill of sale of the motor car. . Thus it appears that at the appointed time Mr. Jones had both the contract of the plaintiff and that of the defendants. While it is true that Mr. Jones did not physically deliver the contract to the defendants, yet he produced it and showed it to Mr. Erdtman. As the defendant testifies that he had gone to Mr. Erdtman, who said that they would go to the place of meeting to “ see whether the contract was signed or not by Mr. Morton ” (the plaintiff), I think that Mr. Erdtman may be regarded as the agent or representative of the defendant on that occasion.

The evidence was sufficient to indicate a delivery. Before the closing day the parties had signed and delivered, the contract to Mr. Jones without any restrictions upon him, and upon that day Mr. Jones produced the contract of the. plaintiff and offered it to the defendant or his agent for his inspection, and thereupon the defendant refused performance on the sole ground which I have indicated. But acknowledgment was not an essential part of- the contract, for it relates to the proof of execution thereof. (1 Am. & Eng. Ency. of Law [2d 6d.], 488.) Moreover, there is testimony that the plaintiff produced the bill of sale of the car and that the defendants, while they waited for the coming of. a notary, waived the absence of an acknowledgment. The evidence is sufficient to establish a delivery. (Sarasohn v. Kamaiky, 193 N. Y. 203; Worrall v. Munn, 5 id. 229, 237.) Even though it had been the understanding that the contract “should be formally drawn up and put in writing,” that agreement “ did not leave the transaction incomplete and without binding force, in the absence of a. positive agreement that it should not be binding until so reduced to writing and formally executed.” (Disken v. Herter, 73 App. Div. 455.) And even though the defendants’evidence is that Mr. Jones was to deliver the plaintiff’s contract to the defendants at a certain time before the closing day, yet we think that in effect there was a waiver on the part of the defendant perforce of his attendance on the closing day and by his omission to raise objection.

The damages sought, so far as the record shows, are. made up of brokerage commission paid to Mr. Jones by the plaintiff, and of a fee for the examination of the title of the defendants to the realty in question. There is no evidence in this record to support the recovery of the broker’s commission. Such an expense was not connected directly with the contract between the parties, and formed no part thereof within their contemplation at the time that the contract was made. Inasmuch as the defendants were to furnish a deed with the usual full covenants and warranty at the seller’s expense so as to convey to the purchaser a fee simple of the premises, free from all incumbrances save as excepted, the necessary legal expense of examination of the title may be the subject for damages. (Northridge v. Moore, 118 N. Y. 419, 422.) But that expense is not determined by the amount which the plaintiff chose to pay to Mr. Jones for such- services.' We express no opinion as to the merits of the plaintiff’s claim, but place our reversal solely upon the ground that he had established a contract:

The judgment is. reversed and a new trial is ordered, costs to abide the event.

Thomas, Carr, Woodward and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  