
    William Gardner and Irving Cox, Respondents, v. Henry Clay Pierce, Appellant.
    First Department,
    April 8, 1909.
    Principal and agent — sale of yacht — commissions — evidence failing to show employment — trial — erroneous charge.
    Evidence in an action to recover broker’s commissions on the sale of a yacht, "examined and held, to establish that plaintiffs were never employed or authorized to sell the boat.
    A broker’s right to commissions does not accrue until he brings the minds of the buyer and seller to an agreement for a sale, and they agree as -to a price and the terms on which it is to be made.
    Although the plaintiffs learned of a possible purchaser and secured an offer of §35,000.from him, this doés not, under the evidence, show them to have been the procuring cause of the sale, which was later made through defendant’s son-in-law for §72,000.
    It was error to charge that if the jury found that defendant did authorize plaintiffs to secure a purchaser for the yacht, and that they did so and brought him into touch with defendant, it does not matter who intervened and conducted the closing of the transaction, and that if the bringing the parties together by the plaintiffs resulted in a satisfactory price offered by the.purchaser and resulted in the sale, then they are entitled to commissions. This because a broker’s authority can be revoked at any time before the sale is consummated, and in the absence of bad faith no recovery can be had for commissions, although a sale is later made with the party with whom the broker was negotiating.
    If the jury found that the plaintiffs were authorized to secure a purchaser, the only question left for them was whether defendant had revoked such authority in bad faith to avoid the payment of commissions about to be earned, and under the evidence it cannot be said that this was so;
    Patterson, P. J., and Scott, J., dissented.
    Appeal by the defendant, Henry Clay Pierce, from a judgment of the Supreme Court in favor of the plaintiffs^ entered in the office of the clerk of the county of Hew York on the 25th day of June, 1908, upon the verdict of a jury, and also from an order entered in said cleric’s office on the 24th day of June, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Marvin W. Wynne, for the appellant.
    
      Charles De Hart Brower, for the respondents.
   McLaughlin, J.:

The plaintiffs were employed by the defendant to design and superintend for him the construction of a yacht, for which he agreed to pay them five per'cent of its cost. Under a contract for the construction it was to be completed on or before the 1st of January, 1902. The plaintiffs made several alterations in the plans during the progress of construction which were not satisfactory to the defendant, in consequence of which lie, on the 9th of. December, 1901, notified them that the yacht wasmot being constructed according to agreement; that it was unsatisfactory; and demanded that work upon it be stopped, which was apparently done. On the thirteenth of March following he sold the boat to one A. 0. Barrage for $72,000, who assumed all contracts relative to its construction, and this action was brought to recover commissions alleged to have been earned by the plaintiffs in making the sale. The complaint alleges that the defendant employed plaintiffs as brokers to sell the boat; that the sale resulted from their services, for which the defendant agreed to pay, and the same were reasonably worth the sum of $3,600, being five per. cent of the purchase price. The answer denied the material allegations of the complaint, and also set up a counterclaim, which is not involved in this appeal. The jury rendered a verdict in favor of the plaintiffs for the full amount claimed, with interest, and from the judgment entered thereon and an order denying a motion for a new trial defendant appeals.

I am of the opinion that the verdict, if not against the evidence, is so much against the weight of it that the judgment cannot be sustained. At the trial it appeared that on the 10th of December, 1901 — the day following the one on which the defendant had notified the plaintiffs that work upon the boat must stop — the parties met at the Hotel Hetherland in the city of Hew York; one of the plaintiffs, Cox, was unable to fix the date of this meeting, testifying that it was some time between the 10th of December, 1901, and the 24tli of February, 1902; the other plaintiff, Gardner, was, however, able to and did fix the date as the tenth of December; their claim is predicated upon what is alleged to have then taken place, each of them testifying that the defendant said ■the best way out of the difficulty was for the plaintiffs to sell the boat, which, by his authority, they did; Cox testified that after the interview he learned of Burrage as a possible purchaser through a Mr. Hutchinson of Boston, to whom he sent plans and a description of the boat; that he subsequently told the defendant that Bur-rage would like to purchase the boat and tried to see the defendant and have him fix a price at which he would sell; that he had several interviews with a friend of Barrage’s, one Smith, with reference to the purchase, and that he also showed an agent of Bur-rage’s, one Bemis, over the boat, and at his request prepared and sent to Burrage, who was in California, a detailed description of it; and that shortly thereafter he made the purchase.

But assuming the plaintiffs did all that is claimed in this respect, it does not establish that they were acting for the defendant or that they were the procuring cause of the sale for him so as to become -entitled to the commissions claimed ; on. the contrary, the correspondence between the parties, it seems -to me, conclusively establishes that the plaintiffs never were employed by -the defendant or authorized in any way by him to sell the boat. On the 17th of January, 1902 — and the plaintiffs, as we have already seen, claim -they were employed on the 10th of December, 1901 they wrote the defendant stating that about six weeks ago we wrote you concerning your boat, the only answer to which we have had is a letter from you stating that you were too busy to take the. matter up. * * * Last Saturday, having an inquiry for a similar boat, we telephoned you *.* * when you-said you would see us Monday, as we told you that our client would be here on Tuesday. * * * Our client has left for California,. and we will have' to send any information to- him there, which yon will perceive renders any negotiations more difficult.” The “ client” referred to was undoubtedly Barrage, and the only meaning that can he given to this letter is that the plaintiffs were representing him as broker in- purchasing the yacht, and not the defendant in selling it. The statements contained in the letter .are inconsistent with the claim that the relation of broker and principal existed between the plaintiffs and the defendant. Ten days later the plaintiffs again wrote the defendant as follows : “We called you on the ’phone this morning in relation -to the sale of £ Orizava’(this was the name of the boat). * * * You aré losing, by delaying seeing us, -the best chance we know of of selling ‘ Orizava ’ at a satisfactory price, and we cannot but feel that you should surely give us some attention in so important A matter to yourself as well as ns. However, you are fully conversant with the whole situation, and we will await your instructions, both as to the further details of the Construction and your wish in regard to disposal of her.” The statement that the plaintiffs-would await, the defendant’s instructions “ as to the further details of the construction ” or his “ wish in regard to disposal of -her ” shows that the plaintiffs did not then suppose they were authorized to sel-1 the boat, and the instructions which they desired were in the alternative,, either to construct or sell, and if they had already been employed to sell, why the necessity for any instructions % On the 21st of February, 1902, they again wrote the defendant, but the letter referred solely to alterations in the boat and said, nothing whatever with, reference to selling. To this letter, two days later, the defendant replied, blaming the plaintiffs for the plans and concluding by saying: “ There is nothing to be gained except annoyance and vexation by continuing this sort of controversy.” This was the last communication which the plaintiffs received from the defendant and it is very significant that in neither of these letters was there a single reference to the employment of plaintiffs to sell the yacht. Immediately following this correspondence the defendant went to Palm Beach, Fla., and on the twenty-fourth of February, Cox again wrote him, addressing the letter to him there. In this letter he stated : “ We had Mr. A. C. Burrage’s man on board the ‘Orizava’ yesterday. He was much pleased with her, and he said that he thought Mr. Barrage would make a bid for the boat, provided she could be gotten out for this summer’s use. * * * If you will * * * make up your mind as to what you want to do in time to give the boat a chance to get out this year, we think some business can be done with Mr. Barrage. * * * We would simply remind you in conclusion that nothing will be gained from our standpoint or yours by further delay in your making up your mind as to what you are going to do with Orizava.’ ” On the following day they wrote one Mixon, who had the contract for the construction of the boat, and who was also then at Palm Beach, saying: “If you feel that Pierce is not going to do anything satisfactory to you, you certainly can negotiate with Mr. Burrage to protect yourself and finish the boat.” If the plaintiffs had been authorized to sell, as they claim, why should they be urging the defendant to make up his mind as to what he was going to do ?

It appears that soon after the date of the correspondence last mentioned both of the plaintiffs left Mew York and all negotiations thereafter were conducted by an employee of theirs named Walker, whose authority to act for them was admitted at the trial. He was not produced as a witness, the plaintiff Gardner testifying that he was no longer in their employ and was at that time ill and in Pennsylvania. Except as contained in the letters there is no evidence as to what was thereafter done by him, representing the plaintiffs, in bringing about a sale. On the fourth of March he wrote the defendant at Palm Beach : “ We beg to confirm our wire today as follows: ‘ Mr. Burrage makes offer of $35,000 cash for your yacht, he to assume your contracts from date of transfer. Kindly wire reply as soon as possible,’ and we hope to receive your reply tomorrow. As we wrote you the other day, Mr. Bur-rage is very much interested in your yacht ‘ Orizava,’ and we feel sure we can aid you in bringing about a deal if you so desire.” If plaintiffs had been employed as they claim they were, why should they ask defendant’s permission to aid him in making a sale ? This letter, beyond question, recognizes the fact that the defendant had not theretofore employed the plaintiffs to sell the boat and they did not suppose he had. The defendant .paid no attention to this' or the subsequent communications addressed to him. The sale was actually consummated by the defendant’s son-in-law, ¡Richards. By the terms of the contract Burrage agreed to pay defendant $70,000—(twice the amount of the offer submitted by the plaintiffs), being the amount he had already paid to the builder — and in addition what he had paid to the plaintiffs, which was $2,000. ¡Richards testified that in the course of his negotiations with Bur-rage he desired to learn what amount the defendant had paid the plaintiffs, and for that purpose and no other. he called at their office; that he then saw Walker, who told him that $2,000 had been paid, and they had made an offer to the defendant on Burrage’s account and should want a commission if a sale were made, and that he then said to Walker the defendant would not recognize any claim of theirs for commissions, and they had not been and were not authorized to sell. Immediately following this interview, Walker, on behalf of the plaintiffs, wrote the defendant: “ In reply to our Mr. Walker’s conversation with Mr. ¡Richards this morning as to what your obligations to us are, we beg to state as follows: As agreed between you and ourselves, for designing and superintending construction, 5$ on the total cost of yacht; and in addition, in the event of our carrying through sale, 5f0 on the total amount you accept.” This letter was addressed to the defendant at the Hotel ¡N"etherland in the city of Hew York. The plaintiffs knew he was in Florida. They had addressed a letter to him there on the fourth of March, and also sent one to him there on the sixth of March. Indeed, this is the only letter in which the subject of commissions for procuring the sale is mentioned at all, and the fact that it was sent to him at his New York address — they knowing that he would not there receive it — is suspicious in itself, and would seem to indicate an attempt on their part to manufacture evidence, in case a sale were made, to sustain a claim for commissions. The letter was dated March fifth, and on the following day they telegraphed and also wrote the defendant at Palm Beach, and in the letter said: “ We beg to confirm our wire of this morning : 6 Is Mr. Barrage’s offer of interest ? If not, kindly wire your best figure and terms immediately.’ ” And on the tenth of March they again telegraphed and wrote the defendant at Palm Beach, saying in the letter: “We beg to confirm our wire today as follows: ‘ Kindly advise us what we can say to Mr. Barrage,’ and would appreciate it very much if you would kindly let us know if we cannot take up this matter with Mr. Barrage regarding figure on c Orizava.’ * «• * understand indirectly that you are endeavoring to work with him direct, but * * * we would very much appreciate it if you would kindly give us the full particulars, as at this writing we have received no communication from you relating to our previous wires, and we feel sure if you will give us some information we can be of great assistance in consummating the deal.” This letter, it will be noticed, was written only three days before the sale was actually made, and it is not claimed, or even suggested, that the plaintiffs in the meantime received any communication from defendant or that they took any part in arranging the terms of the sale. If they had been employed as brokers to sell, it is inconceivable that they would have asked permission of defendant if they could not “ take up this matter with Mr. Burrage.” They did not know the price at which the defendant would sell and they could not get him to name a price. The plaintiffs’ claim, when confronted by their own letters, places them in an anomalous position — brokers claiming to be authorized to sell, without knowledge of tile price at which a sale can be made, asking at or immediately prior to the sale for permission to sell, which the principal refuses to give. Without considering the defendant’s evidence at all, the whole correspondence conclusively disproves that the plaintiffs were ever employed by the defendant to sell the boat. As we have already seen, they were to be paid a percentage of the cost of construction, and naturally they were anxious that the defendant should either complete the boat himself or sell it to somebody who would do so, and this is precisely what their letters show.

But if it be assumed that they were authorized to sell, then the evidence which they adduced at the trial is insufficient to sustain a finding that they were the procuring cause of the sale. The most favoi'able view that can be taken of the evidence is that the plaintiffs learned of Barrage as a possible purchaser and that they succeeded in interesting him in the boat; that they showed his agent over the boat, and finally secured an offer of $35,000 from him. Indeed, the fact that he made an offer of $35,000 was not proven at the trial, but assuming that it was made in good faith and that the defendant first learned of Bur rage through the plaintiffs, then I do not think they were entitled to commissions on the sale which was in fact made. The case, it seems to me, falls squarely within the principles laid down in Sibbald v. Bethlehem I-ron Go. (83 FT. T. 378). There the defendant had employed plaintiff to sell steel rails of its manufacture to the Grand Trunk Railroad Company. After various unsuccessful negotiations, plaintiff finally received a telegram from the railroad company asking for terms on 1,000 tons of rails, and the defendant, though requested by him, refused to quote terms, and it subsequently negotiated a sale through another broker. In holding that the plaintiff had not been the procuring cause of the sale, Judge Finch, who delivered the opinion, said : But in all cases, under all and varying forms of expression, the fundamental and correct doctrine is that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commissions does not accrue. * * * He may have introduced to each other parties who otherwise would have never met; he may have created impressions which, under later and more favorable circumstances, naturally lead to and materially assist in the consummation of a sale; he may have planted the veiy seeds from which others reap the harvest, but all that gives him no claim.” The circumstances are less favorable to the plaintiffs in this case than they were in the Sibbald case. Here, the defendant had never quoted his terms to the plaintiffs at all, though they had repeatedly requested him to do so. They never brought the minds of the purchaser and seller together as to the terms, for the only offer which they claim was made through them Avas $35,000, Avliile the defendant finally sold the boat for $72,000. The mere fact that their efforts led to subsequent negotiations which resulted in a sale — and the most favorable view of the evidence shows nothing else — does not entitle them to commissions. (Donovan v. Weed, 182 N. Y. 43; Cole v. Kosch, 116 App. Div. 715; Miller v. Vining, 112 id. 304; Freedman v. Havemeyer, 37 id. 518.)

I am also of the opinion that the court erred in charging the jury, to which an exception was taken, as follows: Of course, it does not matter if you find that the defendant did authorize them to secure a purchaser for that yacht, and if they found that purchaser and brought him into touch with the defendant — it does not matter Avho else intervened, Avhether Richards or anybody else, and conducted the subsequent closing of the transaction. If that bringing together of the parties on the part of the plaintiffs resulted in a satisfactory price offered by the purchaser to the seller, and resulted in the sale, then they are entitled to their commission * * This was, in substance, repeated later in the charge, and by these instructions the only questions left for the jury Avere whether plaintiffs had been employed and whether they brought Burrage into touch Avith the defendant. This was erroneous. A broker’s authority may be revoked at any time before the sale is consummated, and if the revocation is in good faith, it does not matter if a sale is thereafter made to the very party with whom the broker was negotiating. (Sibbald v. Bethlehem Iron Co., supra.)

Here, upon the evidence, assuming that the plaintiffs had been authorized to secure a purchaser, the only question for the jury was whether defendant had revoked plaintiffs’ authority in bad faith to avoid the payment of commissions about to be earned. But this was not pleaded, nor was the case tried upon that theory. Besides, the fact is undisputed that long prior to the time the sale was made the defendant refused to name a price, had in effect terminated whatever authority they had by stating on the twenty-third of February, in a letter then written by him, that there was “ nothing to be gained except annoyance and vexation by continuing this sort of controversy,” and thereafter refused to answer any of their communications. He dealt directly Avith the purchaser, and obtained a price over twice as large as the only offer the plaintiffs claim to have made. Under such circumstances it cannot be said that he terminated their authority in the midst of negotiations plainly approaching success in bad faith to avoid payment of commissions.'

The judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide event.

Ingraham and Laughlin, JJ., concurred; Patterson, P. J., and Scott, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  