
    Abram H. Cole and Harry A. Cole, Doing Business under the Firm Name and Style of A. H. Cole & Son, Respondents, v. Harry G. Kosch, Appellant.
    Second Department,
    January 11, 1907.
    Principal and agent — broker’s action for commissions—when broker not procuring cause of sale.
    In a broker’s action for commissions on a sale of real estate, it appeared that theownerhad listed the property with the plaintiff for sale. One H.," brought to the owner by the plaintiff, obtained an option on the property for §13,000, which option, however, expired. Later H. offered through the plaintiff §12,500 for the property, which was refused, the owner stating that the price was §13,000. Subsequently another broker procured an offer of §12,750, which was. finally accepted by the owner, the contract of sale being signed by C., who finally turned out to be the mother-in-law of H., and the deed was finally made in the name of Mrs. H. The owner accepted the §12,750 less the commissions of the other broker and had no knowledge prior to the delivery of the deed that H. was interested in the purchase.
    
      Held, that the plaintiff had failed to show himself to be the procuring cause of the sale and that the complaint should have been dismissed;
    That the fact that the owner had listed the property with the plaintiff for sale did not prevent him from effecting a sale through other brokers.
    Hooker, J., dissented.
    Appeal by the defendant, Harry G. Kosch, from a judgment of the County Court of Westchester county in favor of plaintiffs, entered in the office of the clerk of said county on the 2d day of March, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward R. Otheman, for the appellant.
    
      Charles A. Van Auken, for the respondents.
   Jenks, J.:

The action is to recover broker’s commissions on the sale of land. The title was in Kosch for himself and Mrs. Coffin, and the latter’s husband had charge of the property for the owners. In August, 1905, the land had been listed with the plaintiffs as real estate brokers who had set up a sign upon it. In that month Humphreys came to the plaintiffs and asked them to ascertain the owner’s terms. Within a day or two Coffin and Humphreys were brought together by plaintiffs, and the land was inspected by the three men. Humphreys asked for an option of $13,000 and commissions over Labor Day. Kosch ivas called to the telephone and consented. The option expired. The plaintiffs thereafter submitted on behalf of Humphreys an offer of $12,500, but were informed that the price was $13,000. Subsequently, on .September sixth, Williamson who represented another broker, called to see Kosch and offered $12,500 on .behalf of a prospective purchaser. Finally Kosch accepted his offer of $12,750 and the land was sold. The contradi of sale was signed by a Mrs. Champney, who turned out to be the mother-in-law of Humphreys,, and the deed was finally made out to Mrs. Humphreys. The facts of the transaction initiated by the visit of Williamson and culminated by the sale to Mrs. Humphreys were elicited from the defendant, who was palled as a witness by the plaintiffs. On cross-examination of'the plaintiff Harry A. Cole, the defendant read in evidence a letter of the plaintiffs to the purchaser, dated September 4, 1905, which, after referring to another matter,, states: “Was unable to inducfe Mr. Coffin to consider $12,000 or $12,500. for the Homestead property and he says absolutely ‘nothing, doing,’under the $13,000. - Better consider again on >this valuable plot..” At the close' of the plaintiffs’ case the defendant moved 'for a dismissal on the ground that the plaintiffs’ own testimony showed that the lowest price they were ever authorized to offer'this property at was $13,000, and-the best offer they ever received from a purchaser was $12,500. The motion was denied under exception, -and the defendant rested, whereupon the court submitted the case to the jury, which found for the plaintiffs. 1 think that the learned court erred.

The question is whether there was any evidence to justify the submission to the jury as to whether the plaintiffs brought the minds of the seller and purchaser to an agreement for. this sale at the price and at the terms thereof. (Sibbald v. Bethlehem, Iron Co., 83 N. Y. 378.) We may concede that the attention of Humphreys was called to the land by the plaintiffs’ sign on it; that he was brought into contact with Coffin and Kosch by the plaintiffs; that he was induced by them to ask for an' option upon the land, and that they made offers for the land on Humphreys’ behalf. But all these acts may be characterized by the words of Finch, J., in Sibbald's Case (supra) : He may have introduced to each other parties who otherwise would have never met; he may have created impressions which, under later and more favorable circumstances^ naturally lead to and materially assist in the consummation of a sale; he may have planted the very seeds from which others reap the harvest; but all that gives him no claim. It was part of his risk that, failing himself, not successful in fulfilling his obligation, others might be left to some extent to avail themselves of the fruit of his labors.” The terms, as stated to plaintiffs, were $13,000 and commissions. As appears from the letter of September fourth, written by plaintiffs to Humphreys, they offered but $12,000, then $12,500, which offers were refused, for the plaintiffs write in effect that the price is $13,000. And that they had no authority from Humphreys to increase the offer is indicated by the succeeding sentence of the letter, “ Better consider again on this valuable plot.”

The rule is not affected by the fact that Kosch subsequently sold the land to the wife of Humphreys or to Humphreys himself. (Freedman v. Havemeyer, 37 App. Div. 518, 520 ; Wylie v. Marine National Bank, 61 N. Y. 415, 419.) There is no indication that Kosch was guilty of any bad faith. Williamson offered him $12,500, the highest price theretofore submitted by the plaintiffs. He declined it, and then, as he himself puts it, I was a little tired about dickering with the property, and he raised his offer $12,750, and I accepted the offer.” There is nothing to dispute or to discredit his testimony that he supposed that he had made the sale to some person other than Humphreys. He asked Williamson the question whether the purchaser was Humphreys, and he was told that it was not Humphreys, but a Mrs. Ohampney. Mrs. Ohampney signed the contract, and on the next day Kosch received a payment on account, less the broker’s commissions.

The learned counsel for the respondents contends that Ware v. Dos Passos (162 N. Y. 281) is authority in their favor. In that case the court held that the admission of the defendant to the effect that he considered the plaintiff to be what the law denominated 6 the procuring cause’” was evidence to support the plaintiff and, therefore, the judgment of nonsuit should be reversed. In the case at bar Kosch says it is true that he never took the property out of the plaintiffs’ hands until he sold it. But there is no proof that the agency was exclusive and the mere fact that it was left in their hands did not preclude Kosch from selling it aside from them. (Freedman v. Havemeyer, supra, 520.) He does not testify that he did not sell through any other agent, but that no one was brought m person to him by any other agent. “ I sold the property.” This is not in contradiction of his subsequent testimony that he sold through Williamson representing the purchaser.' He does not testify in effect that the plaintiffs were “ the procuring cause.” It is true that when he ascertained at the time the contract was signed by Mi's. Ohampney that the title was not to be taken by her but by the wife of Humphreys; that he told Humphreys’ attorney that from the facts he . had in his possession he deemed the contract was obtained from him by misrepresentation and that he would resist any attempt to transfer the title because he would be subject tó a lawsuit by the plaintiffs. But Kosch had considered himself entirely free to sell the property, for he had contracted to sell it, and he must have considered that the sale was through Williamson, for he accepted the payment less the commissions to Williamson’s employer, another broker. His final hesitation was due plainly to the revelation that the sale was to Humphreys’ wife. He did not assert or admit that the plaintiffs had aught to do with this sale, but feared “ a lawsuit.” He wished “ to be protected and not be subjected to a.double claim for commissions.” In fine, his lay mind was disturbed lest' he might be subject' to a" claim on the part of the plaintiffs because Humphreys had in the beginning through them secured an option (which had expired before the sale) and had made offers (for smaller ¡Drices which had beén rejected before the sale) and that it came to light that he had after all unwittingly sold the lands to Humphreys’ wife. This is quite different from the admission by a defendant, who is a lawyer (and the court in Ware v. Dos Passos, supra, lay stress on that circumstance), that the broker is the procuring cause, for the court in Ware v. Marine National Bank (supra) say : Hnder these circumstances the bank' violated none of his rights by selling to the first party who would offer their price, and it matters not that they •sold to the very party with whom plaintiff had been negotiating. He failed to find or produce a purchaser upon the terms prescribed in his employment, and the bank was under no obligation to wait any longer that he might make further efforts.” I think that the learned County Court erred in not granting the motion to dismiss, and that, therefore, the judgment and order must be reversed and a new trial be ordered, costs to abide the event.

Woodward, Gavnor and Rich, JJ,, concurred; Hooker, J., dissented.

Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs to abide the event.  