
    Rollin W. White, Appellant, v. Thomas Molloy, Treasurer of the Onondaga Coarse Salt Association, Respondent.
    
      Principal and broker — the broker must prow am employment, express or implied — right of the broker under a conditional agreement to employ him.
    
    There must be an employment, express or implied, before a broker acquires rights.or liability can attach to the principal.
    In an action brought to recover commissions which the plaintiff claimed to have earned as a broker for the defendant upon the sale of certain salt by him, it appeared that the plaintiff sent the defendant by telegraph an order for salt, and afterwards wrote him a letter which showed that he did not wish the salt for himself, but wished to act as the defendant’s agent in selling the salt to one Church.
    The defendant answered, accepting the offer, provided that one McGrath confirmed the order as satisfactory. McGrath arbitrarily refused to do this, and the defendant subsequently sold the salt to Church.
    
      Held, that the plaintiff was not entitled to any commission until he had secured compliance with the condition imposed by the defendant, and that, as it did not appear that the defendant had done anything to influence McGrath’s conduct, he was not responsible for'McGrath’s arbitrary refusal;
    That as It did not appear that in the sale to Church the defendant had acted otherwise than in perfect good faith, so far as concerned the plaintiff such sale did not change the situation.
    Appeal by the plaintiff, Bollin W. White, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 29th day of February, 1896, upon a dismissal of the complaint directed by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Kings.
    This action was brought to recover commissions which the plaintiff claimed to have earned while acting as a broker for the defendant upon the sale of certain salt.
    
      E. H. Harrison, for the appellant.
    
      Andrew H. Green, for the respondent.
   Hatch, J.:

The case does not disclose that, prior to the present transaction, the parties hereto had dealt upon the basis of broker and principal. Although there has been some dealings between them, their nature' does not appear. The parties are, therefore, to be.treated at the opening of the present negotiation as buyer and seller. Upon this basis the telegram of plaintiff, which opened the negotiation, constituted an order for two boatloads of salt, as a purchaser. The answer was an acceptance of the offer to the extent of an agreement to furnish and ship the salt as soon as boats could be procured. As no terms were mentioned in the telegram or in the acceptance, a cash transaction would be implied. There was no employment in this transaction of plaintiff as a broker to effect a sale of the salt for the defendant, and thus far they stood in no such relation. Plaintiff followed Ms telegram -with a letter which' showed that he was not intending to make the purchase for himself, but had received the orders from other parties, and was desirous of acting as agent for the defendant in effecting the sale, and stated therein upon what terms the sale could be made and how he would be paid. This apprised the defendant of the nature of the transaction and the attitude of the plaintiff. So' understanding, the defendant had a clear legal right to accept or reject the proposition offered, or to impose any conditions upon his acceptance of the. order which he chose, and was under no legal or moral obligation to comply with plaintiff’s wishes or to effect a sale through him. He had a. perfect legal right to ignore plaintiff entirely and deal directly with Church, who had given plaintiff the order; for he was not bound to avail himself of plaintiff’s Voluntary action. He had not employed him, and was under no legal obligation to accept his services. There must be an employment either express or implied before a broker acquires rights, or liability can attach to the principal. At this time no such relation existed, and consequently no liability. The defendant resided at Syracuse, and was evidently desirous of being assured that the proposition was a safe one for him to accept, and would be carried out with fidelity. He, therefore, wrote a letter to plaintiff accepting the offer, conditionally upon a confirmation by one McGrath that the order was satisfactory, and stating that upon advice by wire from him (McGrath) to that effect he would ship the salt. The defendant had the right to impose this condition and to refuse shipment until compliance with it was obtained, and plaintiff could earn no commissions until he procured such confirmation, so long as the defendant was guilty of no act which would operate as a fraud upon plaintiff. There is no proof warranting this inference in the case. The confirmation by McGrath, that the order was satisfactory, was never obtained by plaintiff, and was never given; on the contrary, advice against it was made to the defendant by McGrath. It is true that plaintiff testifies that McGrath declined to make any investigation of the matter, and arbitrarily refused to confirm the order. But for this the' defendant was in no wise responsible; it is not shown that he did anything to influence McGrath’s action, or but that he acted in perfect good faith, as he clearly did within his legal right. Plaintiff, upon this evidence, failed in procuring a purchaser satisfactory to the defendant, and in consequence no legal liability was imposed upon him. The fact that a sale of this salt to Church was afterwards effected did not change the situation. There is nothing to show that the defendant did not act in perfect good faith, so far as plaintiff was concerned. The case comes within the principle of Sibbald v. Bethlehem Iron Company (83 N. Y. 378)..

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  