
    HENRY H. SMITH and Another, Plaintiffs and Respondents, v. PHILIP SMITH, Defendant and Appellant.
    An appeal from a ¡judgment presents only questions of law. Questions of fact cannot be reviewed, except upon an appeal from an order at Special Term, denying a motion for a new trial on a case.
    A broker employed to sell real property has earned his commission when he has procured a purchaser able and willing to purchase on the stipulated terms.
    Before Monell, McCunn, and Fithian, JJ.
    
      [Decided October 30, 1869.]
    This case was tried before Mr. Justice Jones and a jury.
    The action was brought to recover commissions on the sale of certain real estate belonging to the defendant. The defendant denied in his answer that the plaintiffs procured him a purchaser for the property.
    The jury found a verdict for the full amount claimed and the defendant appealed.
    A motion was made for a new trial on the judge’s minutes and denied, but no appeal was taken from the order denying said motion.
    
      Mr. E. D. Culver for appellant.
    Where the employer fixes a price, the broker is not .entitled to commissions unless he obtains a purchaser at that price (Jacob v. Kolff, 2 Hilt., 133).
    A variation from the terms of contract does not bind the vendor (Davis v. Shields, 26 Wend., 341).
    “ There is no contract unless the parties thereto assent; to the same thing in the same sense“ the obligation must, in general, be mutual”'(l Parsons on Contracts, 399).
    
      The plaintiffs did not produce a purchaser who was satisfactory to the owner, and who contracted to purchase on the owner’s terras, viz., §6,500 per lot.
    A broker is only entitled to commissions when he produces a party who contracts to buy upon the owner’s terms (Glentworth v. Luther, 21 Barb., 145).
    A broker is not entitled to commissions until he obtains a contract upon the terms which he is authorized to grant (Barnes v. Roberts, 5 Bosw., 73).
    The contract of the plaintiffs was to produce a purchaser at $6,500 per lot. He produced a pretended purchaser for $6,000 per lot.
    The court erred in refusing to charge that, unless the purchaser and seller agree upon the terms of sale, the broker was not entitled to commissions.
    
      Mr. David McAdam for respondents.
    The motion to dismiss the complaint was properly denied.
    The plaintiffs found a person willing to buy on the owner’s terms; this is all they contracted to do, or possibly could do, and thereupon earned their brokerage; and the refusal of the owner to make the contract of sale cannot deprive the broker of his brokerage or affect his right to recover it (Barnard v. Mannot, Court of Appeals, 33 How., 440).
    The motion to dismiss on the close of the case was also properly denied, and the question of procuring cause properly left to the jury; it was for them to decide that question from the evidence. They found for the plaintiffs, and their finding cannot be reviewed on this appeal (Redfield v. Tegg, 38 Transcript Appeals, p. 320).
    It was conceded that McBride was willing to "buy on the ownner’s terms, and the only question was, who procured him; and the Court had already charged the jury fully on that subject, and on all matters bearing on the issue.
   By the Court:

Monell, J.

This is an appeal from a judgment, and presents only questions of law. No appeal seems to have been taken from the order denying the motion for a new trial, which appears to have _been made upon the judge’s mimdps. Therefore, the questions of fact are not before us for examination, even if it were necessary to see if the evidence was sufficient to sustain the verdict. The whole of this controversy seems to have been whether the plaintiffs, or one Leman, another broker, were entitled to the commissions for procuring a purchaser for the defendant’s lots. There was no substantial dispute that McBride was procured to make the purchase, or that he agreed to purchase; that the price was agreed upon and that the defendant consented to the price. Nor was there, nor could there have been, any doubt that enough was done to entitle the' broker who had procured McBride, and brought about the agreement on his part to purchase, to his commission. Indeed, the only doubt then was in the case, and the defendant himself put his defence on that ground, was whether McBride had been procured by Leman or the plaintiffs. And the evidence did not furnish much aid in elucidating the question.

Such being the matter in dispute, and enough having been shown to entitled the broker to his commissions (Barnard v. Monnot, 3 Keyes, 203), there was no reason for dismissing the complaint on the ground that no contract in relation to the terms of sale had been made, and that motion was properly overruled.

The plaintiffs were employed by the defendant to sell the lots. A purchaser was obtained by the plaintiffs, or by Leman. The defendant acceded to the price offered. Thus all was done to entitle the broker who had procured the purchaser to his commissions. This view also disposes of the second request to charge, “that unless the purchaser and seller agree upon the terms of the sale, the broker is not entitled to commissions,” as the evidence was uniform that the terms of sale were agreed upon, and the only reason for not carrying it into complete execution was the doubt in the defendant’s mind that Leman was the primary procuring cause, and the fear that he might have to pay commissions to him.

The motion to dismiss - the complaint on the ground that the plaintiffs were not the procuring cause of the sale, and also the request to charge that if either of the brokers named was entitled to commission it was Leman, were correctly disposed of. The only question in the case was, who was the procuring cause in obtaining a purchaser; and upon the evidence in the case that was a proper question for the jury.

The evidence was somewhat conflicting, but we are not at liberty to disturb the verdict. The case was given to the jury under a very careful charge, and they, it seems, were satisfied that the weight of the evidence was with the plaintiffs.

Leman, who was examined as a witness, was not asked a single question by the defendant in relation to the matter, and that omission was doubtless regarded by the jury as significant of weakness in the defence.

The judgment should be affirmed.  