
    Elias Guthmann, Respondent, v. Marie Meuer et al., Executors, etc., of Henry William Meyer, Deceased, Appellants.
    Appeal from a judgment entered upon verdict and order denying new trial.
    Theall & Beam (Alex. Thain, of counsel), for appellants.
    Guggenheimer, Dntermyer & Marshall (Moses Weinman, of counsel), for respondent.
   Hascall, J.

Plaintiff had a verdict upon his claim for $450, alleged to be due as a commission upon procuring a purchaser for certain real estate.

We are forced to the conclusion that the minds of the parties, vendor and purchaser, did not meet so as to give rise to the claim of plaintiff. There was still a dispute over taxes, which was the reason why no contract of purchase and sale was signed. Ro proof of the terms of defendants’ trust was made in the case, although defendants admit that they were executors and trustees under a will.

The court is asked to maintain, as a contract, a written communication, from one of the defendants to the plaintiff, setting forth the terms upon which she was willing to sell her property. This paper (Exhibit A) could only be binding, if binding at all, on Mrs. Moyer, and, at best, was only a letter of instruction — a notice to a broker. Ro liability is shown by all the defendants, individually, or as personal representatives. If they were liable as executors, could they have sold and conveyed realty, in such capacity? If as trustees, there is nothing set out in the complaint, showing that they could act otherwise than jointly; hence Mrs. Meyer’s signature, or Mr. Cramer’s, could not bind all, and all of the defendants as trustees would not be liable.

It may be that the defendants had power, as trustees, to make a contract; but none is alleged nor proven; so that the court, at Trial Term, could not judicially determine whether the defendants had authority to make an alleged agreement, as executors or otherwise, to bind their trust estate. The court -could not infer the existence of power, and could not know of it unless the authority or direction were contained in the will, and that properly pleaded.

We think that it was error to hold otherwise, and that, under the proofs, it was, at most, a question of personal liability of Mrs. Meyer only, that should have gone to the jury, even if it had been held that the letter (Exhibit A) was a complete and valid instrument of agreement. It seems to us that error in interpretation of the negotiations and status of the parties led to errors in the charge, and that, upon the close of plaintiff’s case, his complaint should have been dismissed.

Judgment and order appealed from reversed and new trial ordered, with costs and disbursements to the appellants to abide the event.

McCarthy and O’Dwyer, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.  