
    John W. Van Valkenburgh, Resp’t, v. Thomasville, Tallahassee and Gulf Railroad Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 16, 1889.)
    
    1. Action—For services rendered—When recovery qannot be had. In action to recover for services rendered, it appeared that the plaintiff entered into negotiations with one Page, the acting agent of the defendant, to the end that the plaintiff should procure some party of means and enterprise to build the defendant’s railroad. The plaintiff suggested that one Lee was a proper person, and subsequently an agreement was entered into between the three parties looking toward the building of the road, and providing in terms that the profits should be divided between them in certain specified proportions. Page acted both for himself and ostensibly for the railroad. He sold one-half of the defendant’s property to the plaintiff and Lee, and the plaintiff transferred an equal interest in ' the profits to accrue to Page. Held, that the defendant is not liable for any of the services which resulted in these contracts.
    12. Referee—Finding—When not upheld.
    A finding predicated upon a promise cannot uphold a finding of per formance.
    Appeal by the defendant from, a judgment entered in .Albany county upon the report of a referee.
    The action was to recover for services rendered and expenses incurred at the request of the defendant and upon its employment.
    The facts are sufficiently stated in the opinion.
    
      C. E. Tracy, for app’lt; H. G. Wood, for resp’t
   Landon, J.

—Assuming without deciding that Mr. John E. Page had full authority to bind the defendant, the defendant is only bound to the extent that Page exercised his authority in his dealings with the plaintiff. Page entered into negotiations with the plaintiff, to the end that.the plaintiff should induce some party of means and enterprise to build the defendant’s railroad in the state of Florida upon such terms as would be profitable to Page himself.

The inducement held out to the plaintiff was, that Page-would divide his profits with him. This was in February, 1884. The defendant then had no railroad, but had a franchise authorizing it to build one. After some preliminary conversation and correspondence between Page and the-plaintiff, the plaintiff by letter of date March 18, 1884, suggested that one Lee was the proper person to take hold of the enterprise. To this Page responded by letter of date, March 24, 1884, in which the contracts subsequently made were outlined. Lee, Page and the plaintiff soon came together. Page procured from the defendant authority “to-close a contract or contracts with J. W. Van Valkenburgh, Esq., and associates, or -others for the transfer and assignment of all the property, titles and interests of any and every kind and nature * * * ■ to said J. W. Van Valkenburgh, Esq., and associates or others” of the defendant. Then, on the 7th of June, 1884, as the referee finds, “ Page assuming to act for and in the name of the defendant, made and executed to the plaintiff and one George C. Lee, a transfer in writing and under seal, of all the assets, property and interests of the defendant.”

On the same day and as a part of the same transaction, the plaintiffs, Page and Lee, entered into an agreement under seal, whereby it was agreed that Lee should advance all the money to carry out the said contract with the defendant, and build the road, and that the profits should be divided between the three parties, Lee taking one-half and Page and the plaintiff each one-fourth.

In these agreements Page acted on one hand for himself; on the other ostensibly for the defendant. He sold half the-defendant’s property to plaintiff, and then plaintiff transferred to Page an equal interest in the profits to accrue from the_ enterprise. Thus, the proposal of March 24, 1884, and plaintiff’s subsequent labors ripened and were merged in this contract. The contract shows that the plaintiff was to-receive his pay out of the property of the defendant transferred to him and Lee, and out of the profits. Lee’s enterprise and money seemed to prevail.

Still assuming that Page had the right to hire the plaintiffs in the name of the defendant to render services in disposing of its franchise and property, the defendant is not liable for any of the services which resulted in these contracts employed to sell defendant’s property; he became one-of its purchasers, and the partner in a contemporaneous agreement for a division of his prospective profits with the-defendant’s agent through whom the cpntract of sale was. made.

The referee finds “that the plaintiff’s connection with, such agreements” (meaning the agreement of sale and. another like agreement respecting a connecting railroad, not necessary here to be mentioned), “was a part of the service that he was performing for the defendant' corpora-tian under and by virtue of his employment by the said John E. Page, in February, 1884.”

The plaintiff did what Page employed him to do, and upon Page’s promise to share his profits with him. The facts disclose very clearly the nature of the employment, and the measure and course of plaintiff’s promised compensation. The referre’s finding that such employment was for the corporation cannot be sustained.

Whatever services the plaintiff rendered and expenses he incurred .were rendered and incurred either to secure, these contracts or under them.

Whether all the directors of the defendant knew that the plaintiff was thus employed and the character of his services, and expressed their satisfaction with them, we need not inquire. The defendant itself was not legally bound, and when able by other agents to assert its repudiation of' the agreements, is at liberty to do so against the parties to them. The court will not aid in enforcing such agreements. This proposition needs no discussion and no citation of authority. It may be that the scheme promised benefits to the defendant, but it is obvious that it contemplated a diversion from it of benefits which it was the duty of its agents to abstain from appropriating to themselves.

The finding of the referee that the defendant through Page settled with the plaintiff for his services at $5,000, is not justified by the evidence. Page did not assume that he already had defendant’s authority to make any settlement. He expressly stated, “If that is your lowest figure I will see that the company will pay you.” This was a. promise, not a performance, and cannot uphold a finding of performance.

The evidence on the part of the defendant tends to show that plaintiff’s claim was against Page and not the defendant. We do not think it necessary to consider it as upon the plaintiff’s case the recovery cannot be sustained.

Judgment reversed, referee discharged, new trial granted,, costs to abide the event.

Learned, P. J., and Ingalls, concur.  