
    De Witt Bruce, Respondent, v. Gansevoort De W. Hurlbut, Appellant.
    
      Broker's commissions—not earned where the purchaser produced materially alters, before he executes, the contract signed by the vendor.
    
    Where, in an.action by a real estate broker to 'recover commissions, evidence is given on the part of the defendant tending to show that after he signed the duplicate contracts of sale, the proposed purchaser made material erasures and interlineations in the contracts- and then signed them, and that the defendant refused to sign or acknowledge the execution of the instruments in their altered form, and that they were never in fact delivered, it is error for the court to refuse to charge that if such was the case the jury must find that the minds of the parties did not meet upon the contract, and that it did not express their agreement.
    Appeal by the defendant, Cansevoort De W. Hurlbut, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 20th day of January, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of January,. 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      George H. Mallory, for the appellant.
    
      John De Witt Peltz, for the respondent.
   Merwin, J.:

■ This action was brought to recover for services alleged to have been performed by plaintiff as a broker in procuring for the defendant a purchaser of certain real estate in Albany. The plaintiff brought the defendant into communication with Mr. Dudley, the proposed purchaser, and after some negotiations a written contract, called in the case Exhibit B, was prepared. This was signed by the defendant in duplicate, and then, as the evidence on the part of the plaintiff tendéd to show, Mr. Dudley also signed the papers, and the parties mutually made a delivery, thus making, as the plaintiff claimed, a completed contract. On the part of,the defendant, however, there was evidence tending to show that after the defendant signed the papers .Mr. Dudley took them and did not sign them in the form in which they then .were, but made some material erasures and interlineations and then signed them, and that afterwards the ' defendant, refused to re-sign them or acknowledge the execution thereof in their altered shape, and that they were never, in fact, delivered. They were afterwards canceled.

The defendant, among other requests, asked the court to charge as follows:

Seventh. That if the jury believe that after the execution of Exhibit B by Mr. and Mrs. Hurlbut, it was interlined by Mr. Dudley before he himself executed it, and it was never subsequently re.-executed by Mr. and Mrs; Hurlbut, they must find there was ho agreement shown by Exhibit B.
Eighth. If the jury believe the erasures and interlineations in Exhibit B were made after that paper was executed by Mr. and Mrs. Hurlbut, and before Mr. Dudley signed it, they must find there was no meeting of the minds of the parties to tliat paper.”

. Each of these requests was refused, except as already charged.

Heither of these propositions had been charged in fact or in substance. It was not claimed by the plaintiff tnat the defendant, after the interlineations and erasures were made, re-signed or acknowledged the execution of the papers, but his claim was that both parties executed and delivered the papers in their original condition. H so, the written instrument was very material, evidence on the proposi- . tion that plaintiff was seeking to show that the minds of the parties met upon a complete contract. The defendant had the right to have the jury clearly understand the effect of a failure b.y Dudley to sign before changes were made. /

It is suggested that the requests were not material, and that the case of the plaintiff can stand upon other evidence that was given. We cannot-say what view the jury took upon that subject. They may have considered the evidence as to a completed written contract the most competent and controlling in the case.

The requests above set forth should, we think, have been granted by the court, and the failure to do so is good ground for reversal.

’All concurred.

Judgment and order reversed.and a new trial grant0'1-costs to abide the event.  