
    BENJAMIN C. THORNAL, Plaintiff and Respondent, v. WILLIAM PITT, Defendant and Appellant.
    I. Contract—when not abandoned or rescinded so that a Party has no Right op Action.
    1. Broker to sell real estate.
    
    1. A. employed B., a real estate broker, to sell certain of his real estate on which there were various mortgages, one of them being held by B’s. wife. Some time after, B. not having as yet been able to get an offer which would cover the mortgages, A. put it in charge of C., a lawyer; C. thereupon saw B., and told him that as a sale of the property could not be consummated, and as B’s wife with others held mortgages amounting to §90,000 in all, that A. had employed him (C.) to take charge of the matter, and that he had come to see about obtaining a satisfaction of the mortgages, and that he wished to deal with B. as the agent of his wife and the other parties ; and C. repeatedly told B. that he no longer acted as broker in the matter, and that he had an adverse interest; and B. stated in reply that he represented the other parties entirely ; B. having all the time.continued his efforts to sell the property, and finally procured a purchaser for them ; this offer he communicated to C., who in turn communicated it to A., by whom it was accepted. The court Ipft it to the jury to determine whether B. (the plaintiff) had relinquished his commission, charging that an employment as agent for mortgagees was not inconsistent with an employment by the owner, and that the mere fact that the broker acted as agent for the mortgagees was not sufficient to show a relinquishment or an intention to relinquish the commissions.
    Held—
    1. A proper disposition of the case.
    2. That the statements made by 0. to B. did not discharge B. from, or put an end to, his employment by A.
    
      a. Because no such authority was vested by A. in 0.
    3. That there was no inconsistency between B’s. employment as agent for the mortgagees and his employment by the owner.
    II. —Presumptions. —Evidence.
    1. Silence of an agent, at the time of the consummation of a contract, as to this compensation.
    
      a. Such silence is not a circumstance to be weighed against the claim for compensation.
    HI.—Instrument.—Construction op.
    1. A broker’s commission in effecting a sale of real estate does not fall within a clause of an instrument executed to the owner of the property by the broker as agent for mortgages to wit:
    Before Monell, Curtis, and Sedgwick, JJ.
    
      Decided November 29, 1873.
    “ We agree to accept in full satisfaction of all claims of every nature whatsoever upon said lots.”
    1. A claim for broker’s commission is not a claim upon said lots.
    2. Oral evidence, effect of, on the contract.
    
    1. Evidence that at the time the instrument was drawn and executed the attorney of the owner told .the broker that to avoid any question about the owner’s being liable for anything more than the amount of the notes to be given, he wanted the agreement, and that in order to avoid any misunderstanding about this matter, the agreement should include every dollar the owner should have to pay in relation to the transaction ; that the broker after the-agreement was drawn read it over, but kept silent as to having any claim for commissions, is not sufficient to call on the court, to construe the written aoni/ract as covering a claim for commissions.
    
    Appeal from judgment and from an order denying a motion made on the minutes for a new trial.
    The plaintiff sues to recover commissions for services as broker in selling twenty lots o.f land in the city of New York for the price of $85,000, and which services are alleged to have been rendered defendant between January 4th and October 19th, 1869.
    The answer states that the plaintiff was the agent of other parties in respect to the transactions mentioned in the complaint, and denies that he ivas employed by, or acting for, or on behalf of, the defendant. There was a verdict of $993.79 for the plaintiff, and the defendant appeals from the judgment.
    It appears from the evidence that in the early part of January, 1869, the defendant employed the plaintiff to sell for him the lots in question. The plaintiff procured an offer of $85,000 for the property in the September following, which the defendant accepted, and conveyed it accordingly. The premises were subject.to a first mortgage of $65,000, and to other mortgages subsequent to sundry persons amounting to $25,000, making the mortgage liens in all $90,000. The plaintiff’s wife held one of these latter, being a mortgage to secure $6,500. As the price paid for the property was less than the amount of the mortgage upon it, the defendant, in order to carryyout the sale, made good the deficiency by giving his notes with his father’s endorsement to secure it with other claims upon the lots above the $85,000, payable in fifteen months, which were paid at maturity.”
    The defendant testifies that he employed the plaintiff to sell the property probably about the month of October, 1868; that it was understood that he was to pay him a commission, and that in the month of May following he gave the property in charge to Mr. Bitch, his attorney at law, by whom, about the month of August thereafter it was communicated to him, there was a purchaser.
    The plaintiff testifies that he communicated the proposition to pay $85,000 for the lots to Mr. Bitch, as the defendant’s agent, and Mr. Bitch testifies he communicated it to the defendant. Thus far there is nothing to sustain the defence, but Mr. Bitch testifies that on the 22d of June, 1869, be saw the plaintiff and told him that as a sale of the property could not be consummated, and as the plaintiff’s wife with others held mortgages amounting to $90,000 in all, that the defendant had employed him to take charge of the matter, and that he had come to see Mm about obtaining a satisfaction of these mortgages and possession of the bonds ; that the matter was entirely in his hands now, and that he wished to deal with the plaintiff as the agent of his wife and the other parties.
    The witness states there were repeated conversations with plaintiff in respect to this matter afterwards, and also that he repeatedly stated to the plaintiff that he no longer acted as broker in this matter; that b.e bad an adverse interest, and that the plaintiff stated to the witness' in substance that he represented the other parties entirely, and that these conversations were principally within the two or three days prior to the making of the contract and of the agreements. .
    At the time of the execution of the contract for the purchase of the lots, the plaintiff, as agent for some of the mortgagees and-one of the mortgagees in person, executed the following agreement:
    “In consideration of one dollar to us in hand paid by William Pitt, the receipt whereof is hereby acknowledged, and of the sale of twenty certain lots on Eighty-third and Eighty-fourth streets sold by said Pitt for $85,000, by contract of this date. We hereby agree to and with said Pitt to accept and receive, in full satisfaction and discharge of all claims of every nature whatsoever against said Pitt upon said lots, including the interest accrued upon all mortgages upon the premises by him agreed to be conveyed, such taxes and assessments as are or may be liens upon the premises, the expenses of said conveyance, and the deficiency between the said sum of $85,000 and the entire amount of the mortgages upon said premises (to wit, $5,000), the notes of said William Pitt endorsed by Charles Pitt, bearing date, October 1, 1869, and payable in fifteen months from said date with interest. Bonds and mortgages to the amount of $25,000 to be surrendered to said Pitt; said notes to be delivered to us or to Mr. Thornal, our agent, and the conveyances required by the above contract to be delivered to the purchaser at the same time and a¡3 parts of the same transaction.
    Said notés to be four in number, each for an equal amount, to wit: $2,004.79.
    It is understood that all amounts payable to said Pitt on account of his contract above referred, above the mortgages for $65,000, are payable to us.
    B. C. THORNAL. [Seal]
    
    JOHN EMMONS. [Seal] ”
    This agreement was executed at the request of defendant’ s attorney, who stated to plaintiff that to avoid any questions about Mr. Pitt being liable for anything more than the amount of the notes he was about to give, he wanted an agreement drawn, and that to avoid any misunderstanding about the matter, he wanted the agreement to include every dollar that Mr. Pitt should have to pay in relation to this transaction. The agreement was then drawn and read over by the plaintiff, who signed, making no claim for commissions.
    The following requests to charge were made by defendant’s counsel, refused by the court, and exceptions taken:
    1st. That if the plaintiff represented a hostile interest, he cannot claim as the broker of the defendant.
    (The court refused so to charge, and the defendant excepted.)
    2d. That the broker is not entitled to represent adverse interests.
    (The court refused so to charge, and the defendant excepted.)
    3d. That if the contract was signed with the understanding that all the charges, including this brokerage or commissions, were included in the amount to be paid by Mr. Pitt, then the plaintiff cannot recover.
    (The court refused so to charge, and the defendant excepted.)
    4th. That the silence of the plaintiff at the time of the consummation of the sale on the subject of brokerage is a circumstance to be weighed against his claim.
    (The court refused so to charge, and the defendant excepted.)
    
      5th. That the agreement "being signed "by plaintiff individually estops him from claiming commissions.
    (The court refused so to charge, and the defendant excepted.)
    6th. That it is the province of the jury to determine whether Mr. Hitch terminated the employment of plaintiff as defendant’s "broker in June, 1869.
    (The court refused so to charge, and the defendant excepted.)
    7th. That if the employment of the plaintiff was so terminated, his subsequent action, if without the request or employment of the defendant, created no liability "upon the defendant, however beneficial such action might have been to defendant.
    (The court refused so to charge, and the defendant excepted.)
    The court charged the jury as follows :
    “The evidence in this case is sufficient to show, I think, that the plaintiff was employed by the defendant to find a purchaser for this property, and that he found a purchaser; that the defendant accepted of him and entered into a contract with him, and, pursuant to its terms, executed a deed conveying' the property. The plaintiff earned his commission. The sole question for you to determine is whether he relinquished his commission.
    “The mere fact that he acted as agent for the holders of these mortgages "is not sufficient to show that he relinquished or intended to relinquish his commission for the sale. An employment as agent for the mortgagee is in no way inconsistent with an employment to find a purchaser for the property.
    “ Mr. Rich, however, states on the stand that there was some conversation between him and the plaintiff at the time this contract was entered into on behalf of the mortgagees, which the defendant’s counsel claims was ■sufficient to amount to the relinquishment, on the part of the plaintiff, of his claim for a commission. He claims also that it was relinquished in the contract itself which was signed "by the plaintiff. I leave that question to you. If you find that he did relinquish his commission, the defendant will he entitled to a verdict. If you do not find that, your verdict will he for the plaintiff for $993.79.
    (Defendant’s counsel excepts.)
    The defendant’s counsel excepted to that part of the judge’s charge to the jury wherein he instructed the jury that the evidence was sufficient to show that the plaintiff was employed hy the defendant to find a purchaser , for this property; that he found a purchaser, and that the defendant accepted of him, and to every part thereof.
    The defendant’s counsel also excepted to that part of' the judges charge to the jury wherein he instructed the' jury that the plaintiff earned his commission, and that the sole question for the jury to determine was whether he relinquished his commission, and to every part thereof.
    The defendant’s counsel also excepted to that part of the judge’s charge to the jury wherein he instructed the jury that the mere fact that the plaintiff acted as agent for the holders of these mortgages is not sufficient to show that he relinquished or intended to relinquish his commissions for the sale; that an employment as an agent for the mortgagees was in no way inconsistent with an employment to find a purchaser for the property, and to every part thereof.
    The defendant’s counsel also excepted to that part of the judge’s charge to the jury wherein he instructed the jury that he left to them the question whether the plaintiff’s claim for commission was relinquished in the contract itself which was signed hy the plaintiff, and to every part thereof.
    The jury rendered a verdict for plaintiff. Defendant’s counsel moved for a new trial on the judge’s minutes, which was denied. The defendant appeals from the judgment entered on the Verdict and from the order denying the motion for a new trial.
    
      Arnoux, Ritch & Woodford, attorneys, and Wm. Henry Arnoux, of counsel for appellant, urged :
    I. The. relation of a broker to his principal is such that the law will not permit him to receive compensation from two principals representing diverse interests in the same transaction, and if he is paid for his services by one principal, he ceases to have any further claim against any other person in relation to such transaction (Watkins v. Corrsall, 1 E. D. Smith, 65; Vanderpoel v. Kearns, 2 E. D. Smith, 170; Dunlop v. Richards, 2 E. D. Smith, 181; Pagsley v. Murray, 4 E. D. Smith, 245).
    II. The court erred in submitting to the jury that they were to determine the effect of defendant’s Exhibit No. 1, and should have charged the jury as matter of law that the execution under seal of that instrument by plaintiff estopped him from claiming any commissions whatever.
    But if that were not so, then the court should have charged the jury that if he signed this instrument with the understanding that his brokerage was included, in the amount to be paid by Mr. Pitt, then he could not recover.
    1st. The rights of the parties are to be determined by the language of the instrument, which is always a question-of law (Westcofct v. Thompson, 18 H. Y. 363, 367). 2d. The language of the instrument covered these commissions.
    ITT. The court also erred in refusing to charge the jury that it was their province to determine, as matter of fact, whether plaintiff’s agency had been terminated before negotiations for this sale were commenced, and that plaintiff could not recover for volunteer services.
    
      1st. It was an issue of fact which was material (Redfield v. Tegg, 38 N. Y. 212).
    The court, therefore, had no right to pass upon it, but was bound to submit it to the jury (Lloyd v. Matthews, 51 N. Y. 124, 129).
    2d. The plaintiff could not recover for volunteer services (Bartholomew v. Jackson, 20 John. 28; Sheldon v. Sherman, 42 N. Y. 484, 489; see Pierce v. Thomas, 4 E. D. Smith, 354).
    
      Chase, Bestow & Holt, attorneys, and Ph. Chase, of counsel for respondent, urged :
    1st. As to the first and second requests to charge, the refusal of the chief justice was correct.
    There were no facts in the case showing that the plaintiff represented any interests adverse or hostile to the defendant (3 Gra. & Wat. on New Trials, 828).
    Besides, the proposition embraced in these two requests is not law. The agent may represent hostile or adverse interests, as when the principal consents that his agent may represent hostile or adverse interests (Redfield v. Tegg, 38 N. Y. 212.)
    2d. As to the third request, the defendant was not entitled thereto.
    1st. He had set up no such defence in his answer. The defendant did not plead accord and satisfaction, or payment. These defences must be specifically averred, and if not, testimony to prove them is inadmissible (McKyring v. Bull, 16 N. Y. 297; Morrell v. Irving Fire Insurance Co., 33 N. Y. 443).
    2d. The chief justice did in fact charge substantially as requested by counsel.
    3d. The chief justice did not err in his refusal of the fourth request.
    1st. It did not appear that the plaintiff was present at the consummation of the sale, that is, when the title passed.
    2d. If the counsel meant when the agreement was made, his request has no force. The plaintiff’s claim for commissions was not then in question ; it was not a part of the subject-matter of the agreement; it was not a claim between the same parties.
    4th. The chief justice did not err in his refusal of the- , fifth request. The agreement was not intended to include the plaintiff’s claim for commissions, and did not.
    The maxim “ Exclusio est unius est exclusio alterius,” the express mention of one thing implies the exclusion of another, applies.
    When parties enter into express written stipulations, the presumption is that they have expressed all the conditions by which they intend to be bound (Broom’s Legal Maxims, 481).
    5th. The chief justice did not err- in refusing the sixth request. It is the -province of the jury to determine facts, and of the court the legal effect of facts.
    Whether the legal effect of Mr. Bitch’s acts in June, 1863, were to terminate the plaintiff’s employment or not, it was not disputed that the plaintiff did thereafter procure a purchaser satisfactory to the defendant.
    6th. The chief justice did not err in refusing the seventh request. If the defendant ratified the plaintiff’s acts, or accepted and adopted an offer obtained by him, he was liable for the plaintiff’s commissions, even if the previous employment had terminated without a further request or employment, especially considering the facts of the former employment and efforts of the plaintiff to sell (Stillman v. Mitchel, 2 Robt. 523; Holly v. Gosling, 3 E. D. Smith, 262).
   By the Court.—Curtis, J.

It came very properly within the scope of Mr. Bitch’s professional duties to take measures to liberate the property from the embarrassments arising from these heavy liens, and to prepare the way so that a sale could be consummated ; and ■such appears to have been the nature of his employment by the defendant. The evidence shows no instructions or authority from the defendant to discharge the plaintiff from his employment as the defendant’s broker to sell the property, or even to interfere with such employment in any way. The witness was not a real estate broker or agent. He told the plaintiff he wished to deal with him as the agent of the parties who held the mortgages. The plaintiff appears to have acquiesced in this, and to have represented all the other parties, and to have aided and negotiated in carrying out the arrangement to make the property marketable. The witness states that he told the plaintiff repeatedly, and principally about the time of the sale, that he, the plaintiff, acted no longer in this matter as broker—that he had an adverse interest. But the difficulty is that he seems to have given this notice to the plaintiff without any authority to do so from the defendant; that it was never acquiesced in by the plaintiff, or acted upon by the defendant; that the witness was himself the medium of communication through which the defendant was notified of the result of the plaintiff’s endeavors to find a purchaser, and whose acts in that behalf were accepted and adopted by the defendant without hesitation or question. There is nothing in the conversations with the plaintiff testified to by Mr. Bitch that is inconsistent with the idea that the plaintiff endeavored to facilitate what Mr. Bitch had in view professionally in respect to the liens upon the property, and at the same time continued in good faith rendering his services .as a broker to the defendant to bring about the sale of the premises ultimately effected by him as such.

If the agreement with the defendant is referred to, it will be seen that there is nothing in it that releases the ■defendant from an obligation to pay for the services of Ms broker. That agreement upon its face is limited to the claims or liens upon the lots, except such as are specified in it, and none of those so specified relate to brokerages, nor can it be contended that the latter are in any way claims upon the lots. There is no evidence in the case that shows that the plaintiff intended to render his services as a broker gratuitously to the defendant, or that he relinquished his claim for what might be or become due to him for such services, or that he ceased to be the broker of the defendant to effect such sale from the time the defendant testifies he employed him until he carried through the sale. Nor does it appear that the defendant at any time discharged him from such employment or authorized any one else to do so in his behalf. The plaintiff’s testimony that Mr. Bitch offered to pay him is not controverted by Mr. Bitch. The latter states that he did not offer the plaintiff an extra commission if he would sell this property for an extra sum. This fails to contradict the plaintiff’s statement.

If these views as to the evidence are correct, they dispose of most of the defendant’s exceptions.

There was no evidence that the plaintiff represented an adverse or hostile interest to the defendant, or that Mr. Bitch terminated the plaintiff’s employment as defendant’s broker in June, 1869. On the contrary, the interests of the mortgagees represented by plaintiff were in harmony with the object the defendant had in view, and the plaintiff representing them was auxiliary to its being carried into effect. There was nothing to submit to the jury in respect to Mr. Bitch’s terminating the plaintiff’s employment, as there was no evidence showing it; and if there had been, it would not have availed against the subsequent course of Mr. Bitch and the defendant in accepting, adopting, and ratifying the plaintiff s acts, and delivering him the contract to consummate the sale.

It affords no ground for a new trial that the court dedined to charge the jury on matters in respect to which there was no evidence.

hieither was there error in the refusal to instruct the jury that the silence of the plaintiff at the time of the consummation of the sale on the subject of brokerage was a circumstance to be weighed against his claim. Agents, including brokers, like professional men, are required to exercise their judgment and knowledge as may be most advantageous to those who employ them, so far as is consistent with justice and the welfare of society. In the highest and best exercise of what is thus required and expected of them, embarrassments might arise if they were at the same instant obliged to give notice of their claim for compensation. It would be an unwise as well as a harsh rule of law, that silence in respect to remuneration at such a moment was to be weighed against them. On the contrary, the policy of the law, and the usages of society, have rather tended to regulate and determine their compensation, than to leave it a subject of clamor and contention.

There was no error in the refusal of the court to charge the jury that if the contract was signed with the understanding that all the charges, including the brokerages or commissions, were included in the amount to be paid by defendant, then the plaintiff cannot recover. It neither appeared from the contract itself nor other evidence that plaintiff’s brokerage was so included, and there was no defence of accord and satisfaction, or payment set up in the answer. Under such circumstances, the failure to charge as requested constitutes no reason for a new trial. The court instructed the jury to find whether there was a relinquishment or not by the plaintiff of the commissions, calling their attention to the conversation which Mr. Hitch stated he had with the plaintiff, and which was claimed on the part of the plaintiff to amount to a relinquishment, and also calling their attention in this connection to the contract signed by the plaintiff, so that the defendant appears to have had all he asked for substantially submitted to and passed upon by the jury.

There were exceptions taken by the defendant to the admission of testimony on the trial, but the rulings of the court seem to be correct. To only one of these was attention called upon the argument. The testimony in that instance was properly held to be irrelevant and immaterial, but was not ultimately excluded.

The judgment appealed from should be affirmed, with costs.

Monell and Sedgwick, JJ., concurred.  