
    Charles A. Slater et al, App'lts, v. Oliver H. Holt et al., as Adm'rs, etc., Resp'ts.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed July 26, 1887.)
    
    Brokers—Sales of land on commission—Right to terminate agency— When entitled to commissions.
    The party_ employing a broker to sell land upon commission, in case of sale, has a right to revoke the agency, if there is no intention, and such revocation does not have the effect of depriving the broker of the fruits of his labor. The question whether the broker' is entitled to commissions turns on the inquiry whether the things he has done, while his agency continues, have brought forth a party able, willing and ready to accept the owner’s offer of sale. Following, Sibbald v. Bethlehem, Iron Co. (83 FT. Y„ 378).
    The plaintiffs,, real estate brokers, were employed by the -defendant’s testatrix, through her agent, Oliver H. Holt, to sell a parcel of land situate in the city of Buffalo, at the price of $14,000, for a commission of two and one-half per cent. The plaintiffs undertook the employment, and did what agents usually do, put their board on the property, placed the parcel bn their circulars, and advertised it. They also made maps of the land, exhibiting how it could be divided into city lots, got several persons to go and look at the land, and had talks with several persons about buying it, particularly with Mr. Cowles, Mr. Hellriegel and Mr. Box severally, and endeavored to induce those gentlemen, individually, to make the purchase.
    In consequence of their efforts Mr. Hellriegel’s attention was arrested and he told Mr. Box that he thought well of the project to buy the land. Subsequent to these efforts of the plaintiffs and the circumstances mentioned, Mr. Holt came to the office of the plaintiffs and told them, as the plaintiffs say, that if they could not close a sale by the next day at noon they should consider the property withdrawn, and no longer for sale at the price of $14,000, but he said to them at the same time that he should put the property in the market at $16,000, and if they found a purchaser to let him know. Mr. Holt claimed that the plaintiffs were inefficient, but the contention of the plaintiffs is that he withdrew the property in bad faith, intending, - or supposing that he would be able, to effectuate the sale to, or through, some of the parties with whom they were endeavoring to negotiate. It appears that before Mr. Holt withdrew the property from the hands of the plaintiffs he went himself to see Mr. Box. It. was proved that on a former trial in the municipal court of Buffalo, Mr. Holt testified: “On the same day that I called on Mr. Box, Mr. Slater said to me that the parties he was figuring with were relying on Mr. Box; then I went to Mr. Box and asked him if he did not want to buy the property.” Mr. Box testified: “I do not know how Mr. Holt came to call on me; Slater had already met me, and Hellriegel and Cowles, and we were talking about buying the property. ”.
    On his direct examination he testified that he had talked with Mr. Hellriegel, and that Mr. Cowles had been to see him about the land; that he, Mr. Box, went to see Mr. Sweet, and Mr. Sweet looked at the land, and they made a plot of it, and that Mr. Sweet said that if he, Mr. Box, wanted to take an interest in it, he would take an interest, and he would like to have his friend Mr. Curtiss also take an interest.
    After his withdrawal of the property from the plaintiffs, Mr. Holt approached Mr. Box again and proposed that he buy the land himself, or get together associates (as it would seem he had done before), and have such associates take a conveyance. Mr. Box in answer said he had already five or six co-partnership accounts of the kind which were with personal friends, and that the whole labor devolved on him and he could not send in a bill for services. Mr. Holt then proposed to pay him commissions if he would take hold of the thing, and Mr. Box said he would see what he could do. Mr; Box then talked over the matter with the parties mentioned, who finally concluded to take the land, and he prepared the papers which were executed conveying the land to Mr. Hellriegel, for the benefit of himself and the associated parties in interest, namely, Mr. Box, Mr. Cowles,. Mr. Sweet, Mr. Curtiss and Mr. Hellriegel himself; and Mr. Box was paid his commissions. The consideration Mr. Holt got for the land was $15,000.
    Mr. Sweet testified that he had not talked with anyone except Mr. Box.
    Mr. Hellriegel testified that he talked with Mr. Slater about three or four times. “Mr. Slater came in and told me of this property and it struck me favorably; Mr. Box came in subsequently, and I mentioned it to him, knowing he was in the business, and stated to him, that if he thought favorably to buy it and I would take an interest in it—that is the way it was brought about; it was finally purchased; the price, however, was higher than Mr. Slater offered it to me."
    Mr. Cowles testified that he made no agreement with the plaintiffs personally. He says: “When our combination purchased the land, I did my own negotiating with Mr. Box; I only represented myself; the negotiations with Mr. Box were at the actual time of purchase."
    Mr. Holt was a witness for the defendants and denied that he took the property away from the plaintiffs abruptly, but testified that he first notified them that they must sell within a week or ten days, or he would withdraw the property, and that after that time was out he extended their time again, upon their claiming that negotiations were pending between them and certain parties for a sale; but that within the time of the extension they had effected nothing, and that he then withdrew the property from their hands.
    After Mr. Holt terminated their agency to sell at $14,000, the plaintiffs endeavored to find a purchaser at $16,000, and not long afterwards obtained an offer from Mr. Schorr and Mr, Loepere for the land at $16,000, and upon making the fact known to Mr. Holt it was found that Mr. Holt had already sold the land to the parties brought into association by Mr. Box.
    The cause was tried before the Hon. James M. Smith, lately chief judge of this court, without a jury, who decided that the plaintiffs did not make a sale of the property, but therein wholly failed, and judgment having been entered upon his decision in favor of the defendants, dismissing the complaint, the plaintiffs brought this appeal from the judgment.
    
      George T. Quinby, for app’lts; Spencer Clinton and Fred M. Engleharts for resp’ts.
   Beckwith, Ch. J.

The plaintiffs claim that there are two grounds upon which they have a right to recover, namely: That they “were the procuring cause of the identical contract for the sale" of the premises, which was finally concluded, and that they in fact procured parties to purchase the property for the sum of $16,000.

With respect to the offer which the plaintiffs obtained from Schorr and Loepere, it is enough to say that it was secured after Mr. Holt had disposed of the land, and was too late, unless it appear that the property was withdrawn from them fraudulently, or without authority; but neither fraud nor want of authority can be conclusively shown from the evidence.

In one sense it might appear that the acts and efforts of Slater, one of the plaintiffs, were the procuring cause of the sale, that is to say, he called the attention of Cowles, Hellriegel and Box to the price of land and to the advantages and profits to be had from the purchase. It appears that after he had talked with Mr. Hellriegel,, that gentleman called the matter to the attention of Mr. Box, and told Mr. Box to look into it, and if he thought well of the project to buy the land, and he would take an interest in it. It appears that Mr. Box thought of the matter, that he talked with Mr. Sweet about it, and that Mr. Sweet expressed a willingness to take an interest if Mr. Box wanted an interest in it, but he wanted his friend Curtiss to be brought in for a share. Mr. Cowles did not individually at any time agree with Mr. Slater to take the land, but he finally became one of the five purchasers, making his negotiations for a share with Mr. Box, as did Mr. Hellriegel. It thus appears that Mr. Slater had got the train of events pretty well in motion which led to the purchase by the gentlemen associated under the management of Mr. Box. Neither Mr. Box, Mr. Cowles, nor Mr. Hellriegel, individually, had expressed to the plaintiffs a readiness or willingness to take the land, nor- is there anything to indicate that either one of them, individually, would at any time have become a -purchaser. Only to such a degree of prospective success had the plaintiffs carried their undertaking when their agency to sell at $11,000 was revoked. They had produced no party able and ready to take the lands at the price. It does not appear that at any time the land could have been sold to any individual member of “the combination,” or to any number of them less than the whole, and the sale to the associates was brought about by Mr. Box; and, as the evidence tends to show, under the ultimate inducement of- the commissions offered by Mr. Holt, although he had before that time considered the subject of buying the land, and Sweet and Hellriegel had expressed a willingness to take a share in the purchase if he should think it advisable to buy. The previous conference with Hellriegel, who had been brought in the way by Slater, and the prior interviews with Sweet, which he had been led to by Slater, or Slater’s customer, Cowles, undoubtedly made it comparatively easy for Mr. Box to bring about the association of gentlemen ready to purchase. But it does not appear that Mr. Box, upon whose judgment Mr. Hellriegel and Mr. Sweet proposed to rely, had at any time before he was approached by Mr. Holt with his offer made up his mind that it was worth while to buy the land.

Indeed, the evidence rather tends to show that he was indifferent about it. The indifference or unreadiness of Hellriegel, Cowles and Box individually in their interviews with Slater makes it probable that he could not have effected a sale to them, even if the agency of the plaintiffs had continued. Holt was not bound to wait indefinitely upon the uncertainty of Slater’s efforts. He had the right to revoke the agency if it was not intended, and did not have the effect, to deprive them of the fruits of their labor. It does not appear that his revocation of the plaintiffs’ authority was in law or in fact fraudulent. It does not appear that they had got anyone to the point of buying, or that there was a moral certainty that anyone of the persons with whom they were negotiating would finally enter into a contract of purchase; therefore the terminating of their agency did not deprive them of anything they had acquired. Even if we should think that Holt fancied that he could effect a sale to Box, and that he might by such means avoid the payment of commissions, yet it was uncertain that he could effect a sale; there was no one standing ready to buy; and whatever might be thought of the propriety or fairness of his conduct in taking the property away from the agents, when they had informed him that they had parties in view whom they hoped to bring to an acceptance of the offer, yet he could not be chargeable with a legal fraud. Besides the evidence shows that the plaintiffs had had the property in their hands for quite a long period of -time, and the testimony on the defendants’ part tends to show that their agency was not abruptly or arbitrarily terminated.

Under the authority of the case of Sibbald v. Bethlehem Iron Co. (83 N. Y., 378), we must hold that the plaintiffs did not carry their undertaking to a point where they could clain commissions. That case settles the law on this subject upon clear boundaries. It is useless to discuss the principles here. The facts of this case can only give example of their application. A broker’s board stuck up on the property, or an advertisement, though giving the first notice that a lot of land is for sale, will not make it certain that a broker has claim to commissions. Extreme exertions to sell, made even with the persons who finally conclude a purchase from the owner, may fail to secure the agent any compensation. On the other hand, the simplest act, as the mere act of putting a notice on the property, or placing the lot of land in an advertised list, may entitle the land broker to his commissions. The question whether the broker is entitled to commissions turns on the inquiry whether the things he has done, while his agency continues, have brought forth a party able, willing and ready to accept the owner’s offer of sale.

In this appeal it is impossible to say that the efforts of the plaintiffs would, directly or indirectly, have ever procured such a purchaser. That they spent money, time and labor, and almost got a purchaser, entitles them to no compensation whatever from the owner.

The consequence is that the judgment must be affirmed, both upon the law and the facts, with costs.  