
    Samuel E. Hendricks, Appl’t, v. George S. Daniels, Resp’t.
    
      (New York Common Pleas, General Term,
    
      Filed June 6, 1892.)
    
    1. Bbokebs—Commissions.
    Plaintiff's assignor was employed by defendant to sell certain property, at a fixed sum, and negotiated with one R., who' reserved his decision and agreed to notify him next day, which he did not do. On defendant inquiring in regard to the matter, having another offer, plaintiff’s assignor said that he supposed the matter had dropped, but claimed commissions if defendant sold to any one he had seen. Defendant afterwards sold to R., through another broker. Held, that as plaintiff’s assignor had failed to procure a purchaser at the price named, and had given defendant the impression that his negotiations were at an end, he was not entitled to commissions, though the sale was afterwards made to the same party.
    2. Same.
    The broker who first calls the attention of a purchaser to the property, and negotiates with him for sale, is prima facie the procuring cause of the subsequent sale, unless the paities in good faith withdraw from the negotiations and abandon the proposed purchase and sale prior to a subsequent renewal of negotiations, or unless the owner sells by another broker.in good faith.
    Appeal by plaintiff from a judgment of this court for costs, entered upon the verdict of a jury in favor of defendant, and from an order denying a motion for a new trial.
    
      W. C. Reddy, for appl’t; Geo. S. Daniels, resp’t in person.
   Daly, Ch. J.

Defendant employed plaintiff’s assignor, Randrup, a real estate broker, early in April, 1890, to'sell his two houses for $4,250 each. Randrup offered one of them on July 25th to one Roland, who proposed to take it provided he could get possession at a date named, and upon certain terms and conditions as to payment, and who reserved his decision until the next day, promising to notify Randrup then whether he would take the house, and if he decided to take it agreeing to meet Randrup oh the Monday following to go to defendant’s office and close the transaction.

Randrup immediately notified defendant by letter of all the above facts, and defendant agreed to the conditions proposed by the purchaser. The latter, however, did not communicate with Randrup, as promised, nor meet him, nor the defendant, on Monday as agreed. The next day, Tuesday, in the afternoon, the defendant received an offer for a less sum from another broker named Dowd. He then went to Randrup and asked him what had become of his customer. Randrup said that he had not seen him since Friday, and he presumed the matter had been dropped, as he was at that time uncertain whether to take the house or not.

Defendant told Randrup that he had called because he had received a less offer through another broker, and he intended to take that offer unless the previous one was accepted. Randrup replied that he claimed a commission if the defendant sold to any one who had seen him. The defendant answered that he would not pay a commission to Bandrup unless the latter procured a purchaser at his price, and that if another broker offered a customer at a price he thought satisfactory, he would take the offer. Bandrup then gave defendant a card with the names of the persons who had been to see him and as to whom he claimed a commission. Among them was the name of Boland. The next day Bandrup called on defendant and told him he had learned that Boland was the customer who had made the offer of a less sum through the other broker. The defendant said that he would sell the house to any one who would procure him a customer. The same day Boland was brought to defendant by Dowd and the sale was made for §4,050.

It is claimed by plaintiff that Bandrup’s negotiations with Boland -were the procuring cause of the sale to the latter and that the defendant is bound to pay the agreed commission because he took the negotiations out of the broker’s hands and concluded them himself. If the facts sustain this view of the defendant’s conduct the plaintiff would have been entitled to recover. The latter's theory is that the defendant, in effect, prevented the plaintiff’s assignor from earning his commissions by interfering with his negotiations. But, according to defendant’s testimony (which we must assume from the verdict in his favor the jury believed), Bandrup had abandoned his negotiations with Boland before the defendant accepted the lower price from the latter. It also appeared from the testimony of the purchaser that he had withdrawn from the negotiations with Bandrup because the price named was too high, and Bandrup had stated that there would be no abatement of the sum named. Bandrup told the defendant that he presumed the matter was dropped. Upon this state of facts defendant was free to accept the services of another broker, or to negotiate with Boland and to take the best price he could get for his property. Bandrup had failed in his effort to procure a purchaser at the price named by defendant, and, having given the latter the impression that his negotiations were at an end, is not entitled to commission though the sale was afterwards made to the same party. Sibbald v. B. I. Co., 83 N. Y., 378; Wylie v. Marine Nat. Bk, 61 id., 416.

It did not affect the right of the defendant to open negotiations with a purchaser, that plaintiff’s assignor notified him that he would claim a commission if the property were sold to that party. There was no notice to the defendant that Bandrup was still negotiating with the party; on the contrary, the notice was in effect that the negotiations were at an end. The defendant’s version of the transaction, which, as wc have said, was accepted by the jury, shows that this was not a case "in which the employer, without terminating the broker’s agency, took the negotiations into his own hands. Martin v. Silliman, 53 N. Y., 615; Briggs v. Boyd, 56 id., 294; Morgan v. Mason, 4 E. D. Smith, 636. The reason why Bandrup’s negotiation with Boland failed that while the latter was considering the purchase he was approached by another broker with the suggestion that he could get the property at a lower price. The defendant was not in any manner responsible for the acts of the other broker, nor for the ■customer’s change of mind. It is not- conceivable that he would interfere for the purpose of getting $4,050 for his property, when, if he had permitted the negotiations to proceed, he might have obtained $200 more. , He seems to have acted in entire good faith, and the verdict of the jury is fully sustained by the evidence.

The exceptions taken by the plaintiff do not call for reversal. The charge by the court “that if Dowd procured a purchaser without any interference on the part of defendant, defendant had the right to conclude a contract notwithstanding the previous transactions with Randrup,” was entirely correct. The modification of plaintiff’s request “that the broker who first calls the .attention of the purchaser to the property and negotiates with him for sale is jprima facie the procuring cause of the subsequent sale, unless the parties in good faith withdraw from the negotiations and abandon the proposed purchase and sale prior to a subsequent renewal of negotiations” by the addition “unless the party sells by another broker in good faith,” states correctly the general rule. The plaintiff’s exception to the court’s leaving the question of bad faith on the part of the defendant to the jury was not well taken. It was more favorable to the plaintiff than the proof warranted, because there was no evideñce of bad faith on defendant’s part. The evidence of the commissions paid to the other broker--could not have affected the result, and possibly the admission of this proof was not improper on the question of good faith.

Judgment and order appealed from affirmed, with costs

Bischoff and Pryor, JJ., concur.  