
    Mirrielees v. Bingham.
    An existing valid cause of action, in favor of the plaintiff, against the defendant, is not discharged or waived by an offer of the plaintiff to permit the defendant “ to use ” the amount due to the plaintiff thereon, if it will enable the defendant “ to carry a trade through,” made between'the defendant and a third person, without other assistance from such third person, though such cause of action accrued and the amount, the use of which is so offered, is due, for services of the plaintiff, as* broker, in negotiating the trade alluded to in such offer.
    The acceptance of such offer by a letter which states in substance that, the defendant on consummating the trade, will keep back a part of the property in which, by the terms of the trade, payment by him to such third person was to be made, “ to supply any deficiency,” in connection with such offer, imports that the offer was an offer of the use of the amount, due from the defendant to the plaintiff, temporarily and not a gift or waiver of it, and that it was not made to induce the defendant to modify his contract with such person, and submit to terms to which he might not otherwise assent, on condition of being exonerated from such claim of the plaintiff.
    Judgment for plaintiff on the verdict.
    (Before Dubb, Boswobth, and Slosson, J.J.)
    Heard, March 11;
    decided, April 25, 1857.
    This action comes before the Court, at General Term, on a verdict for the plaintiff, subject to the opinion of the Court. The question of law arising at the trial was as to the legal effect of the evidence on the part of the defendant to show that, the plaintiff had given up, or waived commissions due him as broker, for effecting a purchase for the defendant of certain real estate from one John Carr, which the latter was to sell and convey, subject only to a mortgage for $5000, and for which property the defendant was to pay in jewelry and goods. The property was, at the time, encumbered with taxes to the amount of some $700, including arrears of interest on the mortgage, which Carr was to extinguish, and his inability to raise money to pay them, seemed likely to prevent a consummation of the contract between him and the defendant, or to cause delay in carrying it into effect. The action was tried before Mr. Justice Duer and a jury, in June, 1856. No question arises on the pleadings. The whole evidence given and proceedings had at the trial are as follows:
    The plaintiff, to maintain the issue on his part, called as a witness:
    J. R. Brain—who being sworn, testified as follows: I know the parties, plaintiff and defendant. The plaintiff is a real estate broker. The defendant is a merchant doing business in New York, and residing in Brooklyn. In the month of November, 1855, the defendant employed the plaintiff to purchase for him; from John Carr, certain houses and real estate situated in Brooklyn. The purchase was made by the plaintiff for the sum of $9,000, and the property was conveyed to the defendant. The usual commission of the broker on the purchase or sale of real estate, is one per cent, on the amount for which the property is sold.
    Being cross-examined, he testified as follows:—The sale was not effected until January 1856. The delay was caused by Carr’s failure to pay off some incumbrances on the property sold by him. It depends upon the sale, or the agreement of the parties, who pays the broker’s commission—sometimes both parties pay him.
    The plaintiff’s counsel having rested his case, the defendant’s counsel put in evidence the following correspondence between the parties:
    Mr. A. Bingham:
    My Dear Sir:—If the amount of my commission ($90) on the transaction between you and Carr will enable you to carry the trade through without other assistance from Carr, I am willing to allow you to use the same in that manner, as I fear that Carr finds it impossible to raise the money, and I will be happy to hear your decision by the bearer.
    G. M. Mirrielees.
    
      Sat'y, Jan'y 12.
    G. M. Mirrielees, Esq.:
    Dear Sir:—The appropriation of your commission with what aid I may otherwise obtain, I think will enable me to consummate the matter. I will give it my attention .on Monday, and in the meantime if you see Carr, hurry him up. Of course I shall keep back a portion of the jewelry to supply any deficiency.
    A. Bingham.
    
      Jan'y 12, 1856.
    The counsel for the defendant then rested, and thereupon the plaintiff’s counsel recalled the witness
    
      J. B. Brain,—who testified as follows: The property sold by Carr to the defendant was subject to a mortgage for $5,000, and there was also due for arrears of interest, and for taxes and assessments, about $700. Carr agreed to pay off this $700, and the property was then to be conveyed to defendant, subject to the mortgage. Carr was to be paid in jewelry and goods.
    Being cross-examined, he testified as follows; It was Carr’s neglect to pay off this $700 which caused the delay from November, 1855, to January, 1856. The defendant finally paid off the interest and taxes himself.
    The plaintiff’s counsel having again rested, the counsel for the defendant requested the Court to charge the jury that the plaintiff had waived and given up his right to commission or compensation as against the defendant in order to effect the sale, and that without such waiver the sale would not have been effected. But the Court refused so to charge the jury, to which the counsel for the defendant excepted.
    The Court directed the jury to find a verdict for the plaintiff, subject to the opinion of the Court at General Term, as to the construction of the correspondence between the parties, and the jury thereupon gave a verdict for the plaintiff for the sum of $93.50, and the Court directed that judgment in this cause be stayed until the decision of the General Term upon a case to be made by the plaintiff, and that the plaintiff should apply to the General Term for judgment herein.
    
      J. H. Hartt, for plaintiff,
    moved for judgment on the verdict, and insisted that—The ground of waiver taken at the trial, is not set up in the answer; and even if it were, it is submitted that the plaintiff only waived the payment of the $90 for such time as would enable the defendant, by the “use” of that sum, to complete the purchase of the property; he offered the “use” of the $90, and the defendant accepted the offer, declaring, at the same time, the means by which he would secure his own indemnity for the extra advances he was about to make in order to obtain the property he was about to purchase.
    
      Hopper and Howland, for defendants,
    relied on the following point:—The point upon which defendant relies, is raised by the exception to the refusal of the Court to charge the jury as requested; viz.: that the plaintiff, in order to effect a sale, and in consideration that the defendant would pay off the incumbrances himself, offered to give up his commission from the defendant as purchaser, to enable him. so to do, which offer was accepted, and the sale completed.
   By the Court. Bosworth, J.

The charge which the defendant’s counsel requested the court to give to the jury, and the only point made by him in opposition to the plaintiff’s motion for judgment on the verdict, concede the right of the plaintiff to recover, unless the evidence proves that, the plaintiff waived and gave up his right to commissions against the defendant, and that by reason of, and in consideration of such waiver, the defendant completed his purchase on terms with which he was under no obligation to comply.

Whether such proof was given depends, mainly, upon the true construction of the two notes or letters of January 12, - 1856. In construing them, we start with the fact conceded that, the plaintiff had earned his commissions, and that they amounted to $90. It must be borne in mind also, that the only obstacle to .a completion of the contract was the difficulty which Carr experienced in raising money sufficient to pay the taxes and assessments, which were a lien on the property, and the arrears of interest upon the $5,000 mortgage, subject to which, and to which alone, the property was to be conveyed to the defendant. Hence, if the contract between Carr and the defendant was to be fully executed, it might be necessary for the latter to pay some money, instead of paying, wholly, in jewelry and goods. That he might be indisposed to advance, in addition to' paying to the plaintiff presently the commissions due to him.

Tn that condition of things, the plaintiff offered to allow the defendant “to use” the amount to be paid to him, if that would enable the defendant “ to carry the trade through without other assistance from Carr.” It was not an offer to relinquish the commissions, and waive all claim to be compensated for the services rendered. The defendant’s reply shows, that he must have so understood the offer; for after stating that, “the appropriation of your commission, with what aid I may otherwise obtain,

I think will enable me to consummate the matter,” and saying, “I will give it my attention on Monday, and in the mean time if you see Carr, hurry him up,” he declares, in conclusion; “of course I shall keep back a portion of the jewelry to supply any deficiency.”

The obvious meaning of the correspondence is simply this: The plaintiff to make it easier for the defendant to advance some money, instead of paying wholly in goods, if he preferred that course to delay in carrying the contract into fuR effect, offered to delay the payment of the $90 to himself, and thus put the defendant in funds to that amount, to be used for such purpose, and funds which he would not have had to be so used, if he paid the commissions at once.

The defendant accepted the offer as thus made, and thus understanding it. The concluding paragraph of his letter, expressed a purpose to protect himself, by retaining enough, in value, of the jewelry and goods, to cover and reimburse himself any amount of money he might agree to pay in lieu of paying in goods, to enable Carr to carry his contract into effect.

We think it quite clear that, there is nothing in the correspondence which imports that, the plaintiff relinquished his commissions, or could have been understood by the defendant as doing so. There must be a judgment for the plaintiff on the verdict.  