
    Strong v. Prentice Brownstone Co.
    (City Court of New York—General Term,
    November, 1893.)
    Plaintiff brought about a contract between defendant and one H. for the sale of a certain quantity of stone, and was to receive a commission therefor. After the making of the contract, and in pursuance thereof, defendant sent a quantity of stone to H., who declined to accept it on the ground that it Avas not of the proper grade and quality as called for in the contract, and thereupon refused to proceed any further. It appeared that defendant was in fault in that it did not ship to the purchaser, H., the grade or quality of stone specified in the contract. Reid, that an action would lie for the recovery of said commissions even though II. had failed to perform his part of the contract, as plaintiff’s duty had been performed and his commissions earned when he brought the minds of the parties together and the contract of sale was made.
    Appeal from a judgment in favor of plaintiff entered on the verdict of a jury. The opinion states the facts.
    
      Warren Higley, for plaintiff (respondent).
    
      Niles & Johnson, for defendant (appellant).
   McCarthy, J.

This is an appeal from a judgment in favor of the plaintiff, and is an action to recover commissions for the sale of certain stone to one Hiclcox under a contract.

The plaintiff brought about this contract and was to receive commission for same. The commission to be paid was to be the-difference between fifty cents cost per cubic foot at the quarry and any higher price the plaintiff should secure for the defendant, it being understood that the purchaser should also agree-to pay the freight. The cost of the freight, as shown, was twelve and one-half cents per foot'. The contract secured by the plaintiff for the defendant fixed the price at seventy cents-per foot, which, after deducting the sixty-two and one-half cents, left the commissions to which the plaintiff was entitled at seven and one-half cents per cubic foot. It is evidence-that the quantity to be used under contract was 9,042 feet, for which at seven and one-half cents amounts to $678.37. After the making of the contract, the defendant, for the purpose of carrying out the same, sent a quantity of stone to Hiclcox, the purchaser, who declined to accept it on the ground it was not. of the proper grade and quality as called for in the contract, and thereupon refused to proceed any further. It appears by the evidence that the defendant was in fault, and did not in the- first shipment send to the purchaser, Hickox, the grade or quality of stone called for. This did not affect the plaintiff his duty had been performed when he brought the minds of the parties together and the contract was made. He had produced a purchaser who was ready, willing and able to enter-into a contract upon the defendant’s terms. Wylie v. Bank, 61 N. Y. 415 ; Sibbald v. Bethlehem Iron Co., 83 id. 378,381,382.

The cases approving this are so numerous that it is unnecessary to cite them. We think the charge of the justice under the evidence in the case was fair and proper, and find no error.

The judgment should, therefore, be affirmed, with costs.

Van Wyck, J., concurs.

Judgment affirmed, with costs.  