
    Alvan W. Perry, Appellant, Respondent, v. Benjamin L. M. Bates, Respondent, Appellant.
    First Department,
    November 5, 1906..
    Contract — letters confirming oral contract — oral proof of .contract admissible — agreement to procure advance of money — when plaintiff entitled to agreed compensation.
    When letters written between contracting parties purport merely to confirm the terms of a prior oral agreement the letters are not controlling as to the terms of the contract, which may be shown by oral evidence which supplements or apparenly contradicts the letters. x
    When the parties entered into an oral contract whereby the plaintiff was to be paid §4,500 for procuring a lending company to advance §900,000 to purchase real estate and erect a hotel thereon and convey it to the defendant, the cóm■pensation to be earned when the agreement for the' advances was executed, but thetime of payment postponed until title passed to the lending company, the plaintiff’s right to recover after execution of the contract and the taking of . title by the lending company cannot be affected by .its failure to make further advances, or by any act of the defendant.
    A letter of the defendant’s agent after a conversation fixing the plaintiff’s compensation, purporting to be in confirmation thereof, but stating that the plaintiff was to receive one-half of one per cent of the moneys advanced, which percentage at the estimated amount of the advance would be the same as the sum agreed upon by the oral agreement, cannot have the effect of altering the t contract and' parole evidence of the terms thereof is admissible.
    Cross-appeals by the plaintiff and by the defendant from á judg-. ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk óf the county of New York on. the 15th day of February, 1906, upon the verdict of a jury rendered by direction of the court, and also respective appeals from two orders entered in said clerk’s office on the 5th and 13th days of March, 1906, respectively, denying the appellants’ ^motions for a new trjal made upon the minutes.
    
      Howard Taylor, for the plaintiff.
    
      J. Delahunty, for the defendant.
   Scott, J.:

. Plaintiff sues to recover the sum of $4,500 which, as he alleges,' was agreed to be paid to him by defendant for procuring the execution of an agreement by the Central Bealty Bond and Trust Company to purchase a parcel of real estate in. the city of New York and to erect thereon a hotel and after completion to convey the property to' defendant dr to a company to be organized by him. The facts are undisputed. The evidence shows that in March, 1901, the defendant desired to find capital to purchase a plot of land on the northwest corner of Park avenue and Forty-first street in the city of New York, and to erect thereon a twelve-story hotel, and he employed plaintiff to find some one who woúld advance the amount. requisite, which was estimated at $900,000. Plaintiff opened negotiations in this behalf with the Central Bealty Bond and Trust Company, a corporation which agreed to make the required advances. On .March 7,1901, plaintiff wrote to one Brundage, who is conceded to have acted as "defendant’s agent, stating that he had .procured a company ready to make the advance, and then said: “ Our charges for this service will be the usual one-per cent of the amount involved in addition to the company’s charges. Please acknowledge the receipt of this letter and state that you agree — on behalf of Mr. Bates and Mr. Weelces and the others whom you represent — to the terms.” Brundage at once, and on the same day, replied acknowledging the receipt of the letter and saying': “ Your charge of Vf0 for the service. will be entirely satisfactory to me and I agree on behalf of my principals in the matter, to your making this charge in addition to the company’s charge.” A few. days later, on March eleventh, the plaintiff again wrote Brundage as follows: “ In the matter of your application to me for funds to carry out Mr. Bates’ Chatham Hotel scheme and our preliminary agreement as to my commission in case the funds are procured upon my introductions, I would like to have our agreement cover in form as well as in fact; my commission to be one per cent (1$) of the amowit involved whatever ultimate form the scheme may take — whether building loan, agreement to build for or lease to Mr. Bates, or otherwise on the proposed site or elsewhere, such commission to be payable by Mr Bates upon the signing of any contract between him and. his friends and parties inti'oduced by me. Please confirm on behalf of Mr.- Bates and the others whom you represent, my understanding in this matter.” To this Brundage at once replied: “ The arrangement is entirely satisfactory to me and Mr. Bates, conditioned on the following understanding, to wit, that should the negotiations now under way result in an undertaking on the part of your parties to erect an hotel for Mr. Bates, advancing all the. funds necessary and turn it over to him completed on the payment by Mr. Bates of a given sum of money, your commission shall be based on the advances of your parties less the amount of money that they may require Mr. Bates to provide.” It is to be observed that Brundage did not literally agree to the terms proposed by plaintiff. The latter stated that his commission would be one per cent upon the “ amount involved,’’ while Brundage agreed that the commission should be estimated upon “ the advances of your parties.” This latter phrase standing by itself might be deemed to indicate that the commission was to be calculated upon the amount actually advanced, as contradistinguished from the amount agreed to be advanced. Against this construction, however, is- the condition in plaintiff’s letter, characterized as entirely satisfactory ” by Brundage that the commission should be payable upon the signing of the contract for the advances by the lending company. It is not import ant, however, to determine just what the rights of the parties would have been if the matter had rested here, for the agreement between them was materially modified on March sixteenth, when plaintiff and defendant had an interview, at which Bates objected to paying so much as plaintiff deemed himself entitled to, and which finally resulted in an agreement that-defendant should pay plaintiff $4,500 for liis services in procuring the contract then about to be executed between defendant and the lending company, and. it was agreed that the sum should be paid when that company took title to the property. In confirmation of this agreement, Brundage on the ,same day (March sixteenth) wrote referring to the conversation between plaintiff and defendant and said: I beg to répeat the understanding hereat arrived at, to wit, that your commission providing the deal is closed with the Central Realty Bond and Trust Company, is to be one-half of one per cent on the net advances made by that company for account of Mr. Bates, the same to be paid you at passage of the title on the real estate.” This letter is stated to be written in confirmation of the previous, conversation as testified to by plaintiff, and substantially accords with it. It is true that the evidence as to the oral agreement is thatBates agreed to pay . the precise sum of $4,500, whereas Brundage speaks of the aniount to be paid as One-half of one per cent of the net advances, but since it was assumed throughout the trial that the sum to 'be advanced was estimated at $900,000, there is no real difference in the amount referred to. Again, as in his former letter, Brundage speaks of the commission as being calculated on the advanees, which taken by itself might be construed to mean only the amount actually, advanced; but he also specifies the time for paying the commission as the occasion of passing the title, at which time, in the nature of things, Only a portion of the amount would be actually advanced. Taking the' whole transaction as disclosed upon the trial, including the conversation as well as the letters, we are of opinion that the fair construction of the agreement between the parties was that plaintiff was to find some one who would agree to make the desired advances, estimated at $900,000; that his compensation for doing this was fixed at $4,500; that this compensation would be earned when the agreement for the advance was executed, the time of payment only being postponed, for the convenience of defendant, until the title to the real estate should pass, and, the agreement between Bates and the lending company once having been made, no abrogation of it by consent of the parties or refusal to comply by one of them could affect plaintiff’s right to recover his agreed compensation. The agreement between defendant and the Central Realty Bond and Trust Company was executed on March eighteenth, and that company then agreed to advance . $350,000 for the purchase of the land, and to erect a twelve-story building thereon, and after erection to transfer the property to a corporation to be organized by defendant. The realty company carried out this contract so far as to take title to the property, paying thereupon the $350,000 agreed upon, but for some reason, not disclosed by the evidence, did not advance any further moneys under the contract. It is not made quite clear by the record whether the court below actually struck out the evidence as to the conversation between plaintiff and defendant resulting in a promise to pay the fixed sum of $4,500, but it repeatedly ruled that such evidence could not be considered, and that the rights of the parties must be determined by the written contract as evidenced by the letters, and accordingly directed a verdict in plaintiff’s favor for one-half of one per cent upon the amount actually advanced by the realty company.- In arriving at that figure the court must have accepted Brundage’s letter of March sixteenth as the final embodiment of the agreement, since that was the only letter in which one-.half of one per cent was mentioned as the rate of commission to be paid. In this respect we think that the court erred. The letter of March sixteenth does not purport or profess to be a complete contract. On its face it professes merely, to be a recitation and confirmation of the oral agreement made between plaintiff and Bates on the same day. It is a common experience in ordinary business life that-parties come to an oral agreement, and that subsequently, one or both of the parties write confirmatory letters. In such cases it is considered that the oral agreement constitutes the real' contract between' ■ the parties, and that the letters are to be treated merely as evidence of what had previously been orally agreed upon, and the rule is that • the parties are not tobe held bound by the Statement of the terms of the contract as stated in the written confirmatory letter or memoranda, but may show what the real contract was, even if in so doing it may be necessary to supplement or apparently contradict the written paper." (Brigg v. Hilton, 99 N. Y. 517; Lichtenstein v. Rabolinsky, 75 App. Div. 66 ; Leary v. Moore, 48 Misc. Rep. 551.) In the pres-„ ent case, as the evidence stood, the final agreement between plaintiff and defendant respecting plaintiff’s compensation was that which was arrived at during the conversation on March sixteenth, and the evidence as to the terms then agreed upon was competent, and should neither have been stricken out nor disregarded. The result arrived at, however, could not have been reached unless the court did disregard this evidence, and the direction of a verdict only for one-half of one per cent on the amount actually advanced was,' therefore, erroneous.

The judgment and order should be reversed and a new trial ■ ordered, with costs to plaintiff, appellant, to abide the event.

Patterson, Ingraham, Laughlin and Houghton, JJ., concurred.

Judgment reversed, new trial ordered, costs to plaintiff, appellant, to abide event.  