
    Philologos Holley v. Henry D. Townsend.
    T., the owner of certain real estate, agreed with Ho., a broker, to pay Mm a commission if he would procure a purchaser for the property by a specified day. On that day, Ho. informed T. that he was unable to procure, a purchaser. He afterwards informed Hi., another broker, that the lots were for sale. Hi. procured a purchaser, but T. refused to pay Mm any commissions, and Hi. received his compensation fi’om the purchaser.
    
      Held, that Ho. was not entitled to recover commissions from T.—Bbady, J., dissenting. ■
    
    I. The employment of Ho. by T. was at an end at the time when he informed T. that he was not able to procure a purchaser.
    II. Nor did he, in fact, procure the purchaser. He merely informed another broker that the defendant had the lots for sale, and that broker procured the purchaser.
    A party is not entitled to recover a commission from the owner of real property for informing a broker that such property is for sale, although a purchaser is after-wards procured by such broker.
    Appeal by defendant from a judgment of the Fourth District Court. The action was brought to recover for broker’s commissions. Judgment was rendered for the plaintiff. The facts in the case are fully stated in the opinions of the court.
    
      William R. Martin, for the appellant.
    
      L. J. Goodale, for the respondent.
   Hilton, J.

In the fall of 1857, the defendant owned six lots on Forty-seventh street, in this city. The plaintiff’s son, Byron M. Holley, called to inquire their price, and to learn what commissions the defendant would give upon a sale.

The testimony is conflicting as to whether or not B. M. Holley- stated to the defendant that he came on behalf of the plaintiff, but it is quite evident, from the letter of the defendant to B. M. Holley in evidence, that he, and not the plaintiff, was the person with whom the defendant supposed he was dealing. This negotiation was finally ended by B. M. Holley calling upon and informing defendant of the inability of Holley, or the party for whom he had acted, to purchase the lots. The defendant was then justified in supposing that, as the negotiation entered upon by Holley had ceased, all obligations connected with or incident to it were at an end.

Some time after, a Mr. Higgins, another broker, called on the defendant respecting these lots, having been informed of his ownership by Holley, (whether plaintiff, or his son, is not specified.) Higgins says that he distinctly told defendant, when he called, that he came from Holley; and the defendant states directly the contrary. But whether Higgins so stated or not, is quite immaterial, because he and the defendant agree as to what subsequently took place respecting the sale and commissions. Upon Higgins opening the conversation with the defendant respecting the lots, the defendant inquired whether commissions were to be charged him; being answered in the affirmative, he at once declined to sell on the terms proposed. Higgins then left; and, as appears from the testimony of the witness Day, having in the meantime secured his commissions from the purchaser, called the day after on the defendant, and agreed to take the lots and charge no commissions. This agreement was distinctly reiterated at the time the defendant executed and delivered to Higgins the final contract of sale, and in the presence of the subscribing witness Long.

Under these circumstances, it seems difficult to understand upon what principle the defendant can be held liable to the plaintiff for commissions on the sale. Long before its negotiation commenced, any contract which existed between the plaintiff and defendant respecting the lots was put an end to, by the mutual understanding of the parties to it; and throughout the interview which terminated in the sale finally made, it was distinctly and expressly agreed, between the defendant and Higgins, that no commissions were to be expected or paid.

The judgment should therefore be reversed.

Daly, First Judge.

I agree with Judge Hiltoh. B. M. Holley testified that Townsend told him that the lots were for sale, and that he would pay a commission of one per cent. Townsend testified that he gave B. M. Holley until Friday to see what he could do, upon which day he called and said he could do nothing with the lots. Upon this point there is no conflict, and it is, I think, decisive of the case. Even if B. M. Holley told Townsend that he came from the plaintiff, this must be construed as an agreement to pay a commission provided a purchaser was procured by the day fixed. On that day, B. M. Holley" called and told Townsend he could do nothing, and the employment was at an end. A sale was afterwards effected through Higgins, who obtained his commission from the purchaser, Townsend having refused to pay him a commission. The plaintiff did not procure the purchaser. He merely informed another broker that the defendant had the lots for sale, and that broker procured the purchaser, and sought to get the defendant to pay him a commis sion for effecting the sale, which the defendant declined. There was no employment existing when the plaintiff informed Higgins that the lots were for sale, and a man is not entitled to a commission from the owner for informing a broker that certain lots are in the market, a purchaser for which is .afterwards procured by the broker. A right to a commission must be founded upon a contract express or implied, and none existed between the defendant and the plaintiff when Higgins procured the purchaser.

The judgment should be reversed.

Brady, J., dissenting.

It does not appear, from the-defendant’s statement, that the plaintiff was negotiating a sale of the lots in question for himself, or that Byron M. Holley was acting on his own behalf, with the intent of purchasing for himself All that the defendant says, having any reference to that subject, is that he never saw the plaintiff until he saw him in court at the time of the trial; and that Byron M. Holley never said, or insinuated, that he was acting for plaintiff. He does state, however, that he gave B. M. Holley “ until a Friday to report whether he could do anything, He called the day fixed, and said he could do nothing with the lots" Holley swears that he called on the defendant, at the request of the plaintiff, in reference to the lots in question, telling defendant at the time that the plaintiff sent him. That the defendant then said he was the owner of the lots, and that they Avere for sale. That defendant named the price, and said he would pay a commission of one per cent. Higgins SAvears that plaintiff informed him of the lots, and that he Avent to the defendant thereupon. The evidence on the part of the plaintiff proves an employment, a sum agreed upon as a compensation, and that the defendant Avas benefitted by the plaintiff’s services rendered. The defendant’s statement corroborates the evidence of B. M. Holley. If the plaintiff or B. M. Holley designed to purchase, and applied for that purpose, the defendant should have so stated. His silence, and the peculiar phraseology used by him in giving his testimony, justify the conclusion that such Avas not the case. The evidence of Jones, and of Higgins, in reference to a commission, affecting only the right of Higgins to charge one, does not conflict with the view presented of the agreement between the parties. But even were it otherwise, there is abundant testimony to sustain the finding, and in my opinion it cannot be said that the finding is clearly against the Aveight of evidence.

I think the judgment should be affirmed.

Judgment reversed.  