
    Henry S. Redfield, Administrator, etc., Respondent, v. George Tegg, Appellant.
    
      A real estate broker is entitled to his usual commission for a successful negotiation of the exchange of property put in his hands for sale. He is not bound to effect a sale upon the terms named by the owner, when he leaves the property with him, in order to be entitled to his commission. The terms of sale or exchange being accepted by the owner, and secured through the aid of the broker, the obligation to pay commissions becomes fixed.
    For facts, which justify a refusal to dismiss the complaint, in an action to recover commissions for the sale of real estate, see opinion of Clerks, J. For finding of facts without evidence, see dissenting opinion of Groves, J.
    
      Oscar Craig, for the respondent.
    
      H. Humphrey, for the appellant.
   Clerke, J.

Was the referee right in denying the motion to dismiss the complaint?

The complaint alleges, that the defendant employed the firm as real estate brokers, to sell his farm on the Lyell road, containing about sixty-three acres, together with certain personal property, and that the defendant agreed to pay them, for so doing, the customary commissions. It further alleges, that, in the month of January, 1858, they did effect a sale of the farm, and said personal property, to Mary Louisa' Ritter, for the sum of $13,600; and that the customary commissions for such services are one per cent.

The complaint demands judgment for $136. Gunnison one of the firm testifies, that, sometime previous to the sale, the defendant gave him his real estate for sale, and, that he entered it in his register book, and advertised it on a card put up in front of his office in the Arcade. From May, 1857, when they were first employed, he testifies that defendant was in, several times, trying to find a purchaser; that he sent several people, no less than three or four, to the defendant; the attention of people calling at the office was directed to this property; defendant was there once a week for several weeks. Ritter, a friend of the lady who afterward purchased the property, came to him, and said they had been trying to trade and could not; they wished him to examine the property, and to try to get them to agree. He, accordingly, went to see the property once or twice. He went all over it, came home and calculated the value of the property of each; they came again and looked it (the valuation I suppose) over together, and, after having several interviews in his office talking the matter over, they wished him to draw a contract, on which they had pretty much agreed. The agreement and an addition on the back of it were subsequently signed and completed ; one dated the 14th January, and the other the 20th January, 1858. Some time before the sale, the defendant was informed by him, that the commissions would be one per cent. Another member of the firm was sworn, but he added nothing material to the testimony of Gunnison.

On this evidence, the defendant’s counsel moved for a non-suit, on the ground, that it did not appear that the plaintiffs found the purchaser, and, that they were not, therefore, the procuring cause of the sale; and, second, that, as it appeared by exhibit “A,” that they had received, or had become entitled to receive their full compensation from Ritter, they could recover no compensation from the defendant.

Even if it was necessary, after the proof of employment, and several subsequent visits of the defendant, with his conversations and inquiries, and of various efforts to sell the property, also to prove that they procured the purchaser, I see nothing in the evidence to show that they did not procure him. They advertised the property, many people called at their office inquiring about it, and it may be correctly inferred, it was in consequence of this advertising and other efforts of the plaintiff, that information relative to it reached Ritter, either directly, or from some other person who had information directly from the same source. It is quite evident, that defendant retained plaintiffs, and agreed to pay the commissions, by not dissenting when-he was informed of what they would be; he afterward called at their office several times, and finally came with the purchaser, and requested them to affect an agreement, which the plaintiffs succeeded in doing. I think this, in connection with the efforts to sell from the beginning, may very justly be considered as services rendered in pursuance of the original employment.

Besides, in the contract with Ritter, marked as exhibit “A,” there is a clause, by which' both parties acknowledge their indebtedness to the plaintiffs, to the amount of their customary commissions. Gunnison swears, that the defendant examined the contract after it was drawn; “ he hesitated, and deliberated, and at length concluded to sign the contract.” This may be taken as an admission, that the sale was effected through the agency of the plaintiffs. But, I do not think that it is an admission to operate against the plaintiffs, that the purchaser was to pay the commissions, and that it released the defendant from his obligation to pay the plaintiffs for their services. The plaintiffs rendered services, indeed, to both; they enabled Ritter to dispose of the houses in Rochester, and the defendant to dispose of his farm on the Lyell road. Ritter does not acknowledge himself liable for the disposal of the defendant’s farm; but, if the admission amounts to any thing in relation to him, it makes him, or rather his principal, liable for "services rendered to her in disposing of her houses.

After the motion for the dismissal of the complaint was denied, the defendant proceeded with his defense, and, on the whole evidence, the referee finds, as conclusions of fact, the retainer by the defendant, his promise to pay one per cent upon the amount for which the property should be sold; that in pursuance of such retainer, the plaintiffs registered and advertised the defendant’s property for sale in their usual manner, and did afterward effect the sale of said property.

The General Term has not interfered with these conclu-' sions of fact, and the referee’s conclusion of law, that the plaintiffs are entitled to recover, necessarily follows.

I think the judgment should be affirmed with costs.

Grover, J. (dissenting).

The facts found hy the referee fully authorized the judgment rendered by him. The only questions arise upon the exceptions taken by the defendant to the findings of fact, and to the denial of the motion for a nonsuit. The evidence was conflicting upon some points, and wherever any conflict exists it must be assumed in this court, after affirmance of the judgment by the Supreme Court, that all facts tending to sustain the judgment were proved, in support of which any evidence was given before the referee, notwithstanding the proof to the contrary. Adhering to this rule, it must be assumed as proved, that the defendant was the owner of about sixty acres of land near Rochester, which, in Hay, 1857, he employed the plaintiffs to sell for him at the aggregate price of two hundred and seventy-five dollars per acre, cash, the defendant to pay one per cent commission in case of sale, but nothing unless the sale was effected; that the plaintiffs posted a notice upon their bulletin board, describing the property and terms of sale, and entered the property in their register of property for sale, and made some other efforts to sell the property, but effected no sale; that, about the 1st of January, 1858, the defendant and Ritter went to the office of the plaintiffs, and informed them that they were in treaty for the exchange of the land of the defendant for certain real estate of Ritter’s, in the city of Rochester, but had been unable to agree upon the terms, and requested the plaintiffs to assist them in coming to an agreement; that one of the plaintiffs thereupon went to look at the property of Ritter, proposed to be exchanged, for which the defendant paid him, and also at the property of the defendant, for which he did not pay, and estimated the value of the respective parcels of property, and talked with the parties and aided them to make an agreement for the exchange, and drew the contract therefor, which was executed by Ritter and the defendant, and afterward performed by the parties by giving conveyances of the property pursuant to such contract. The contract drawn by the plaintiffs contained a printed clause reciting in substance, that it was made through the plaintiffs, as brokers, and that the parties acknowledged themselves indebted to the plaintiffs for their usual commissions; but there was no evidence that the defendant or Ritter knew any thing about such clause, except the presumption arising from the signing the contract, and the fact that defendant looked at the contract before signing; and he testified that he knew nothing of it. Upon the above facts the nonsuit was denied. I think the denial was not erroneous. In the most favorable view for the defendant, he was liable to the plaintiffs for his proportion of what they reasonably were entitled to for assisting in negotiating the contract, and preparing it for execution, and were, therefore, entitled to recover of the defendant something, and, although," the complaint was framed upon a sale made under the employment in May, yet no objection was made-upon such ground, and, if there had been, it probably would have been obviated by an amendment. That ground cannot be considered here, nor the objection that Ritter was jointly-liable with the plaintiff; no such objection having been taken -in the answer. I incline to think the latter objection,-.if taken, would have been unavailing, as I think the fair inference from the facts is not, that Ritter and the defendant should jointly pay the plaintiffs, but, that each should pay for-whatever services were rendered for him. There is no appeal upon questions of fact to this court, except where new trials have been granted upon questions of fact, or of both láw and fact. Hence, it follows, that, in the present case, no reviewican he had of any finding of fact where there is any evidence in support of such finding; but, where a fact essential to sustaining the judgment is found, and there is no evidence to sustain the finding, and such finding is excepted to, it may be -reversed by this court for the legal error of finding •a-n affirmative -faet without any evidence whatever. The exceptions taken to the findings of fact in the. present case present the question -whether there was any evidence tending to show that the assistance rendered by the plaintiffs in effect-6 ing the-agreement, for an exchange of real estate between the defendant and Ritter, at the request of, and, so far as appears, for the benefit of, both, had any connection with their employment by the defendant in Hay, to sell his land for a specified price in cash. That assistance was rendered to accomplish a different object, and for different parties. By the latter, the plaintiffs were to negotiate a contract for the sale of the land, as brokers for the defendant. What they did was to render some assistance to Ritter and the defendant, at their request, in completing an agreement, which they were negotiating for the exchange of the land for other real estate. They acted, so far as appears, as the mutual friend, and for the benefit of both parties. They did not act, nor profess to act, as the broker or agent of the defendant, and had no power from him in that respect, more than they had from Ritter. I can see no connection between these acts, and their employment in Hay. No right acquired thereby, to the compensation agreed to be paid in Hay, for negotiating a sale of the lands, upon the terms then specified. The referee erred in finding facts, establishing any such right. The finding was without evidence, and, therefore, error in law. The clause in the printed blank furnished by the plaintiff, which was filled up as the contract between the parties, acknowledging an indebtedness to the plaintiffs for usual commissions, is no evidence in support of the judgment. It is true, that, in this court, it must be assumed to have been read by the parties and understood. But that does not aid the finding. It entirely fails to show, that these usual commissions for assisting as the mutual friend of the parties, in completing an agreement, they were negotiating, for the exchange of real estate, had any connection with the brokerage agreed to be paid by defendant in Hay. There was no evidence whatever, showing what such commissions were.

In Lyon v. Mitchell, this court held, that the broker was entitled to his commissions for making a sale, where the sale resulted from information given by the broker to one, who subsequently, in consequence of such information, negotiated a purchase of the property from the owner and employer of the broker. But that is not this case. The bargain which the plaintiffs were employed to negotiate for the defendant never was made. The property never has been sold for cash. It was exchanged for other real estate. This exchange was negotiated by the parties themselves. The plaintiffs assisted in the negotiations, not as broker for the defendant, but aided alike both parties. The defendant, I think, is only bound to pay a reasonable compensation for the services rendered by the plaintiff for him, or his equal proportion for the services rendered for the parties.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Judgment affirmed.  