
    BAILEY v. GARDNER.
    
      N. Y. Common Pleas;
    
    
      Special Term, January, 1879.
    Brokers’ Commissions Payable in Land.—Statute of Frauds. —Parol Contract for Conveyance of Land.
    Where a real estate broker agreed, before his commissions were earned, that they should be paid by the conveyance of lots of land, and selected the lots he would take, and a deed for them was duly tendered him, which he refused to accept,—Held, that he could not maintain an action for the recovery of his commissions in money.
    
      Although the contract "to convey land in such a case is void under the statute of frauds, he can only recover for the value of his services, after a refusal by the obligee to convey.
    A parol contract for the conveyance of lands is void, but not illegal, and does not give the contractee, agreeing to accept land for his services, a right to disaffirm the contract and recover for his services in money, until the contractor has refused to convey.
    Motion by plaintiff for a new trial, on the minutes, exceptions and a verdict of the jury.
    This action was brought by William Frist Bailey, a real estate broker, against Charles H. Gardner, to recover a commission in effecting an exchange of defendant’s house, in the city of New York, for ninety-seven lots of land, near Paterson, N. J.
    The defendant, in his answer, set up fraud and misrepresentation on the part of the plaintiff, and alleged that at the time of the agreement to make the exchange the plaintiff agreed to accept in payment for his services in effecting the same, as many of said lots as would be of the value of $600. That afterwards it was agreed that he should have nine lots, which were selected and designated, and the defendant had offered to convey and tendered a deed thereof, and had at all times been and still was ready and willing to convey them to the plaintiff, but he refused'to receive the same.
    The jury found specifically that the plaintiff agreed to take in land the commissions for his services in effecting the exchange, and also, that he had selected the lots which he would receive, and in addition thereto gave a general verdict for the defendant.
    Thereupon the plaintiff made this motion.
    
      Thomas M. Tyng, for plaintiff and motion.
    
      Jacob IP. Miller {Miller & Van Vollcenburgh, attorneys), for defendant, opposed.
    The plaintiff could compel the execution and delivery of a deed of the lots 
      (Story's Eq. §§ 759, 1522; Lobdell v. Lobdell, 36 N. Y. 327; Seymour v. Delaney, 3 Cow. 445 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 284 ; Malins v. Brown, 4 Comst. 403, 411 ; Redfield v. Holland Purchase Ins. Co., 56 N. Y. 356; Kirby v. Sisson, 1 Wend. 83 ; Tyler v. Ætna Fire Ins. Co., 12 Id. 507; 2 Am. Leading Cas. 809, and cases cited; Caldwell v. Carrington, 9 Pet. 86). But, even if specific performance could not be enforced, it does not follow that an action for money will lie against the defendant until he is in default (Burlingame v. Burlingame, 7 Cow. 92 ; Lisk v. Sherman, 25 Barb. 437; Fort v. Hooding, 9 Id. 371, 375; Thomas v. Dickinson, 12 N. Y. 371 ; Heilman v. Strauss, 2 Hilt. 11; Abbott v. Draper, 4 Den. 53 ; Dowdle v. Camp, 12 Johns. 451; Quackenbush v. Ehle, 5 Barb. 469 ; Westfall v. Parsons, 16 Id. 641; Emmet v. Reed, Selden's Notes of Cases in Court of Appeals, No. 3, 47). Mr. Bailey having performed his part of the contract and induced the defendant to believe that he did it in pursuance of the contract, cannot now repudiate it and claim money instead of land (Bennett v. Abrams, 41 Barb. 624; Fannin v. McMullen, 2 Abb. Pr. N. S. 225 ; Hobbs v. Wetherwax, 38 How. Pr. 389; Collier v. Coates, 17 Barb. 471; Coughlin v. Knowles, 7 Metc. 57, and cases cited; also see 5 Barb. 414; 14 Id. 95; 25 Id. 438 and 241; 4 E. D. Smith, 161; 2 Lans. 235 and 494 ; 2 Hilt. 9 ; 10 Bosw. 208; 12 N. Y. 371).
   J. F. Daly, J.

The plaintiff having agreed, before his commission was earned, that it should be paid him by the conveyance of lots ; having selected the lots he would take; and defendant having duly tendered him a deed thereof ; no action can be maintained by plaintiff for the recovery of his commissions in money. Even though the contract to convey lots in such a case be void under the statute, it is only where the defendant refuses to convey that plaintiff may sue and recover for the value of his services. All the cases cited by plaintiff present this feature (7 Cow. 92; 2 Hill. 485 ; 25 Barb. 433 ; 32 Id. 576 ; 19 N. Y. 299). In the last case, Erben v. Lorillard (19 N. Y. 299), it is said that: “The contract being void and incapable of enforcement in a court of law, the party paying the money or tendering the services in pursuance thereof, may treat it as a nullity, and recover the money or the value of the services. This is the universal rule in cases where the contract is void for any cause not illegal, if the defendant be in default.” The last clause suggests the controlling point in every such case. A parol contract for the conveyance of lands is void but not illegal (Lisk v. Sherman, 25 Barb. 438). Had defendant refused to convey the lots plaintiff would then have had the right to disaffirm the contract and recover for his services, because, by reason of its invalidity he could not enforce it against defendant’s objection. The right to disaffirm, however, springs from defendant’s default; without such default no promise can be implied on his part by the law, to pay otherwise than as he has agreed and is willing to pay (Abbott v. Draper, 4 Den. 53 ; Dowdle v. Camp, 12 Johns. 451).

Motion denied with $10 costs.  