
    Robert M. Curtiss, Resp’t, v. John C. Mott, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 15, 1895.)
    
    Bbokebs—Contract—Compensation.
    A broker, who is merely authorized to make a sale of property at a price named, is not entitled to receive his commissions unless he secures a purchaser who is ready and willing to take the property upon the terms fixed by the owner. So held in a case where a broker procured a purchaser of real estate provided that the rents amounted to a certain sum, though the vendor represented that the rentals amounted to such sum.
    Appeal from a judgment in favor of plaintiff, entered on a verdict.
    
      Lemuel Skidmore, for app’lt; George J. Kilgen, for resp’t.
   Parker, J.

We do not see how this judgment can stand, although it may well be- that in this particular instance it works substantial justice. The plaintiff, as broker undertook to sell the defendant’s property at a fixed price, at a rate of commission agreed upon. Under the authorities of this state it was necessary for him, in order to earn his commissions, to produce a purchaser who should be ready and willing to purchase the property upon the would-be seller’s terms. This he did not do, but instead he brought a man who would have bought it at the seller’s terms provided the monthly rental at the time had been equal to that represented to him by the broker. How, if the broker had obtained the information as to the amount of the rentals from any other source than that of the intended vendor, it would not be pretended that he could recover commissions. But the jury have found, and therefore it must be taken to be true, that Mott, in response to an inquiry of him by the broker, stated the monthly rentals to have been $510, whereas they were in fact $488. It had rented at the larger figure, but at the time of the inquiry of the broker, as well as at the time when Mr. Philips concluded to take the property at Mr. Mott’s figures if it was rented at $510 per month, it was in fact renting at $488 per month. In the disposition of the case by the trial court it was assumed that it made no difference whether the representations were mistakenly made, and in good faith, or with full knowledge of their untruth; the position taken being that the representations made to the broker about his property formed a part of the seller’s contract with him. and, if any of such representations prove not to be true, and solely by reason thereof the broker fails to bring about a sale upon the terms of the seller, then the broker has performed his part of the contract, and is entitled to commissions as if the sale had actually taken place. Undoubtedly, the owner of property, wishing to sell, could make such an agreement with a broker, in which event he would be bound by it; but it has never been understood, nor has it been held by the courts, so far as we have observed, that a broker, who is merely authorized to make a sale of property at a price named, is entitled to receive his commissions unless he secures a purchaser who is ready and willing to take the property upon the terms fixed by the owner. The legal effect of the ordinary and usual broker's contract, such as this one, has been so long settled by the courts, and has become so thoroughly understood by men of business, that the courts should not lightly permit other conditions to be imported into it. French v. Light Co., 15 N. Y. Supp. 161; 39 St. Rep. 515, supports the positions we have taken that the plaintiff has not performed his contract, and, that being so, he is not entitled to recover commissions which can only be based upon its performance. Whether, in a proper action, this plaintiff could recover damages because of misrepresentations which prevented performance of his contract, we need not consider, as that question is not before us.

The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event

Yaw Bruwt, P. J., concurs.

O’Briew, J.

— I dissent, thinking the judgment should be affirmed.  