
    EMERSON v. ROOF.
    
      N. Y. Supreme Court, First Department; Special Term,
    1883.
    ■Action for Money Paid.—Principal and Agent; special AGENCY-TO SELL LAND.—VENDOR AND PURCHASER; DESCRIPTION OF PREMISES; DAMAGES.
    A real estate broker, employed to sell premises designated only by street and number,—e. g., 34 Broadway,—cannot bind his principal by the unauthorized delivery to a purchaser, of a diagram which specifies the supposed dimensions of the property, as his agency is special in character, and the purchaser is chargeable with notice of his special authority.
    And if the contract of sale, subsequently executed, describes the premises by street and number without reference to dimensions, that will control and bind the purchaser, in the absence of fraud or mutual mistake.
    
    A vendor’s refusal to perform, does not give the purchaser a right of action for commissions paid the broker as a condition precedent to the signing of the contract; nor for commissions paid a broker on a resale by him contracted for before the signature of his contract to purchase, and when he had no legal right to resell.
    
    
      Trial by the court.
    This action was by Edward H. Emerson against Clarence M. Boot to recover the amount paid by the plaintiff as part payment of the price and as broker’s commissions, on account of his purchase of real estate from defendant. '
    Homer Morgan, a real estate broker, who had been employed by former owners to sell the premises Fos. 34 Broadway, and 69 Few Street in the City of Few York, upon receiving an offer therefor'from plaintiff, sought out the defendant, the then owner, and conducted negotiations which resulted in the execution of a contract to sell, the purchaser to pay the broker’s commissions upon the sale. The contract was dated April 20,1883, at the request of the plaintiff’s agent, though executed, in fact, on the following day, and the premises were therein described by street and number. Prior to this Mr. Morgan’s clerk, without defendant’s authority, had given plaintiff’s agent a diagram showing the premises to be of a certain width, but the deed tendered on the day fixed for closing the sale showed the premises to be about four feet less in width than appearedfrom the diagram. Plaintiff declined to accept this deed, and brought this action to recover $2,500 paid on execution of Ms contract, $1,275 commissions paid to Morgan, and $1,380 commissions paid to a broker through whom he had made a contract of re-sale on April 20, 1883, the day before the actual signature of his contract to purchase from defendant.
    
      Abram WaTceman, for the plaintiff.
    
      Alfred Roe, for the defendant.
    
      
       Otherwise if an authorized sale by diagram, &c. Phillips v. Higgins, 7 Lans. 314; aff’d in 55 N. Y. 663, on same opinion.
      Compare Smyth v. Sturges, 13 Abb. N. C.
      
      For the rule in case of agricultural lands, see Paine v. Upton, 87 N. Y. 327; S. C., 41 Am. R. 371; aff’g 21 Hun, 306, and see 39 Am. R. 874.
    
    
      
       The vendor in an executory contract for the sale of lands, in the absence of express statements to the contrary, represents and warrants that he is the owner of the property, which he assumes to sell. While a concealment of want of title is not per se frapdulent, as the vendor may intend and have it in his power to acquire title before the time of closing, it is fraudulent when accompanied with a fraudulent intent to deceive and defraud, and with a positive knowledge that he cannot acquire title to the property sold. In such case the purchaser may rescind the contract and recover back the moneys paid. 1882, Innes v. Willis, 48 Super. Ct. (J. & S.) 188, and cases cited.
      And as to the liability assumed by contracting to convey before obtaining title, see Pumpelly v. Phelps, 40 N. Y. 59; aff’g 24 Barb. 100. Such liability is avoided by assigning the contract, instead of entering into a fresh one.
    
   Larremore, J.

The premises were in Morgan’s hands for sale for some years before the defendant acquired any interest therein. It was not until the spring of 1883 that Morgan, upon the application of a purchaser, sought out the defendant and opened a correspondence with him upon the subject. This correspondence, and the interviews between the parties, finally resulted in the execution of the contract upon which this suit is brought. It might be said, in view of the evidence, that Morgan was as much the agent of one party as the other in effecting the sale. He was not expressly employed by the defendant. He met the inquiry of a purchaser by finding the owner of the premises and bringing them together. They made a contract, and his mission was ended. But conceding, as was insisted upon the trial, that he represented the defendant, his agency at the most was special in character, and the plaintiff in dealing with him was chargeable with notice of his special authority. He had no authority from the defendant to issue a diagram showing the dimensions of the property. This was an act for which his alleged principal cannot be held responsible. But whatever representations may have been made, and even though the plaintiff was mistaken as to the dimensions of the property he purchased, yet in the absence of fraud or mutual mistake, the contract of April 20 th, 1883, must control my decision. Before It was executed, the plaintiff’s agent, who was a lawyer ¡by profession, requested that the dimensions should fbe inserted therein, to which the defendant replied that he did not know what the dimensions were except -in a general way, and that he would sell “ as 34 Broadway and 69 New street.” Nothing was then said about a diagram. 1 In this he is corroborated by the testimony of the attorney who drew the contract, while vthe testimony of the plaintiff and his attorney upon . that point is purely negative in character. They do f not recollect any such conversation.

Assuming, therefore, as the evidence warrants, that the plaintiff was bound by the contract, the question arises : Is it still in force ? Time was not originally of its essence, nor has it become so by subsequent notice (Myers v. De Mier, 4 Daly, 343 ; affirmed, 52 N. Y. 647). The plaintiff is still entitled to perform it according to its terms. It does not appear that the property has depreciated in value, or that the defendant has sustained any loss by reason of its non-performance. He has received $2,500 for which he has given no equivalent. It would be inequitable for him to retain it unless the plaintiff alsolutely and unconditionally refuses to perform.

No right of action arises for the commissions paid by the plaintiff. The $1,275 were received by Morgan as a condition precedent of the execution of the contract. The $1,380 were paid in advance, before the plaintiff had any legal right to sell the property to Morris.

Under all the circumstances, I think the plaintiff should have another opportunity to save his $2,500, and if within twenty days after service of a copy of the judgment to be entered herein, he shall tender performance of the contract, the same shall be performed according to its terms, subject to adjustment for interest and moneys expended properly chargeable upon the property, which, if not agreed upon, maybe settled by a reference for that purpose. If the plaintiff fails to perform as above stated, then judgment is ordered for the defendant.  