
    R. De Witt Veeder, Appellant, v. Albert J. Seaton, Respondent.
    
      Principal and agent—when an agent earns his commission although the contract is not in writing and not, therefore, enforaible against the purchaser — an exception to. the direction of a verdict is sufficient— the party excepting need not ask for judgment or’ to go to the jury.
    
    An agent employed to sell automobiles on commission, who effects a sale of an automobile to a responsible party for §2,000, the price stipulated by his principal, upon terms satisfactory to the principal, is, in the event of the refusal of ' his principal to perform the contract of sale by delivering the automobile and accepting the purchase price, entitled to receive his commission for effecting the sale, notwithstanding that the contract was not in. writing and that the vendee might, on that account, have refused to accept the automobile when-tendered to him.
    Where, upon the trial of an action before a jury, the defendant moves for the direction of a verdict, the plaintiff,, by neglecting to make a motion for the direction of a verdict or for leave to go to the jury, does not thereby consent to allow the court to pass upon the issues involved in the action without the aid of the jury.
    In such a case an exception taken by the plaintiff to the direction of the verdict in favor of the defendant entitles the plaintiff to review upon appeal the propriety of the-ruling. ' ,
    
      Appeal by the plaintiff, R. De Witt Yeeder, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 5th day of December, 1902, upon the dismissal of the complaint by direction of the court as.to the second cause of action therein set forth, and upon the verdict of a jury, rendered by direction of the court as to the first cause of action, after a trial at the Schenectady Trial Term.
    
      William Dewey Dóneles, for the appellant.
    
      JDlocTe & Phillips ¡ for the respondent.
   Houghton, J.:

The second cause of action set forth in the complaint is for commissions in effecting the sale of an automobile.

The plaintiff was agent for the defendant for the sale of automobiles in the territory embraced within the counties of Albany, Schenectady and Montgomery. Shortly after his appointment as agent he effected a sale of a Winton touring car to one Mallett, residing in the city of Albany, at the agreed price of $2,000, which was the price stipulated by the defendant. ■ The machine was to be delivered the twentieth of June following. The terms of sale prescribed by the defendant required that $200 be paid upon obtaining the order. This the prospective purchaser refused to make. The order was communicated by the plaintiff to the defendant, and the plaintiff testified upon the trial that he informed the defendant that the purchaser would not make the payment of $200, but was willing to pay the full price of $2,000 on the delivery of the machine, and that the defendant inquired as to the responsibility of the purchaser, and, upon learning that he was entirely responsible, agreed to waive the payment and deliver the machine. The machine was not delivered on the prescribed date, but was promised, as testified by plaintiff, from time to time without any objection on the part of the defendant that the preliminary payment had not been made. The purchaser was anxious for the delivery of the machine, and wrote several letters asking that it be delivered, and inquiring why it had not been. Considerable of the negotiation was had with one Birdsall, and the respondent makes the point that Birdsall had no right to waive the preliminary payment. But the testimony shows that Birdsall was the manager of the defendant, .and incidentally it is disclosed, although not pleaded by the answer, that Birdsall was in fact partner of the defendant. Whatever Birdsall did, therefore, was the act of the defendant with respect to accepting the order and waiving payment and agreeing to deliver a machine. '

•• The testimony of the plaintiff and Mallett showed that the plaintiff procured a' responsible purchaser who- had agreed to buy a machine at the defendant’s price, and who was ready and willing to accept and pay, and the plaintiff, therefore, upon defendant’s refusa to perform by delivery and acceptance of price, was entitled to his commission.

The contract of sale of the automobile to Mallett was not in writing and, therefore, might have been taken advantage of by him when the machine was tendered; but that fact did not prevent the agent from earning his commissions when he effected a sale to a responsible party at the stipulated price, or terms waived, and accepted by the defendant. A contract for the sale of real estate to be binding must be in writing, but an agent who has been authorized to make a sale at a certain price, earns his commission when he has procured a purchaser ready and willing to purchase at the terms fixed, with whom the vendor refuses to contract or to whom he refuses to convey upon payment. (Mooney v. Elder, 56 N. Y. 238.)

The defendant and Birdsall denied the acceptance of the order and the waiver of the first payment, and it is possible that their version of the transaction was the more reasonable and .that they were right in their statements; but nevertheless the plaintiff was entitled to have the jury pass upon his version of what took place. The learned trial court must have overlooked the fact that the plaintiff’s testimony established full performance on_ his part of all that he was required to do in order to earn his commission, and it was error to dismiss the complaint as matter of law.

The respondent insists that the plaintiff has waived his right to complain of the dismissal of the complaint because he did not request to go to the jury upon the issues. No motion was made by the plaintiff for direction of a verdict in his favor. A party who requests by motion that the court dispose of the case without the aid of the jury, cannot complain that, the issues were not passed upon by them; and where each party makes such a request neither •can complain that the jury should have.been allowed to decide, for by such motions both consent that all of the issues be passed upon by the court. But where one party only makes the motion, and the other remains silent, no such consent can be implied, and the propriety of the ruling is brought up by mere exception. (Walker v. Phoenix Ins. Co., 89 Hun, 333; Train v. Holland Purchase Ins. Co., 62 N. Y. 598; Pratt v. D. H. M. F. Ins. Co., 130 id. 206.)

The judgment, so far as appealed from, is reversed and new trial granted as to the second cause of action set forth in the complaint, with costs to the appellant to abide the event.

All concurred.

Judgment, so far as appealed from, reversed and new trial granted as to the second cause of action, with costs to appellant to abide event.  