
    Frederick W. Menzies, Appellant, v. John B. Fairburn and Alonzo L. Roberts, Respondents.
    First Department,
    May 18, 1906.
    Contract by plaintiff to procure his appointment as trustee and then lease lands to defendant — conditions precedent to recovery by plaintiff.
    Under a contract providing that the plaintiff shall endeavor to have himself appointed trustee of an estate, and on his appointment will execute a lease to the defendants of mines and mineral rights on lands included in the trust estate, the defendants in the meantime to take possession of the mines, occupy, develop and operate the same, and providing for the payment of liquidated damages by the defendants if they fail to carry out. the agreement, the plaintiff, as a condition precedent to the recovery of the liquidated damages, must show his appointment as trustee, and that he tendered the lease under authority from the court. ( Quasre, as to whether such agreement is valid in any event.
    Appeal by the plaintiff, Frederick W. Menzies, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of July, 1905, upon the decision of the court, rendered after a trial at the New York Trial Term, the case having been takqn from the jury, dismissing the complaint upon the merits.
    
      William C. Cammann, for the appellant.
   Laughlin, J.:

The action was brought to recover $2,000 as liquidated damages for breach of a Contract made between the plaintiff and the defend- ' ants on the 27th'day of May,1902.- The contract recited that the defendants Were desirous.of.leasing -upon the terms - therein specified the rights to'certain mines and minerals discovered therein in certain lands therein described situate in the -county of St. Law-, rence, which belonged to the estate of Alexander Oswald. Brodie' ' and were subject to certain trusts created by his will; that the last surviving'trustee of the will had died and there was no representative of the estate in existence competent to make' a leasé that an application was about to be made td the court by some of the parties in interest for the appointment of the plaintiff as trustee for the purpose,, among others, of accepting .the proposition of the defendants to lease the mines and mineral rights; .that, the plaintiff ' had in contemplation thereof already expended various sums, of money in obtaining an abstract of title and had incurred legal expenses “in connection with" the matter and otherwise,” and that the- agreement was made in consideration of the premises and of the agreements and covenants therein contained and of the expenditures already made by the plaintiff, and of the sum' of one dollar. . The plaintiff agreed, in the event of his being appointed trustee and receiving authority, to make the lease upon the terms and conditions therein set forth. The defendants agreed to accept the lease for the périod.from the date of its execution-to and including the 3lst day of March, 1912, upon the rental therein specified and upon the further terms and conditions therein contained by which, among other things, they were to have the option-of purchasing'the premises upon terms and conditions therein agreed upon.

It was further agreed that the defendants should, immediately take possession of the mines, occupy, develop and operate the same upon the same terms and conditions as if the contemplated lease had been executed, except that the rental, other than. royalties, should not commence until the 1st day of November, 1902, and that such taking possession was to be without liability to the plaintiff. It-was agreed that the improvements made should become the property of the plaintiff., .

The 7th clause of the agreement provided that if the_ defendants should fail to go into possession and occupation of the premises and to operate the same and make the improvements thereon or pay the rent as therein provided, or to accept the lease when offered by the plaintiff or by such person as should be appointed trustee, or should fail to perform any of the other terms and conditions of the agreement, the plaintiff or his representatives should thereupon have the right “ to re-enter and take possession of the said premises, together with all the improvements, developments, buildings, plant and machinery thereon, as hereinbefore specified in Article IY > and' .shall also recover from the parties of the first part (the defendants) the sum of $2,000 as liquidated damages for such failure, to be paid by -the parties of- the first part.”

The agreement contained a pro visó that if, before the 1st day of November, 1902, it should be discovered that there was no talc or mica in the premises' in such quantity as should be satisfactory to the defendants, then, upon their giving the plaintiff written notice of such fact and their intention so to do, they should have the' right upon that ground, on or before that date, but not afterwards, to reject and refuse to receive the proposed lease, and to vacate and remove from the premises upon paying the plaintiff “for such expenditures as he has already made to the date of this contract, and which it is agreed will not exceed .$500.”

It was further agreed that the contract should be binding upon the plaintiff only in the event of his being «appointed trustee and being granted power and authority by the court to make the lease; and he agreed in the event that another person should be-appointed trustee that he would use his best endeavors to effect the execution and delivery of the lease upon, the terms specified in the agreement. z

The plaintiff alleged and proved that relying upon the agreement he continued negotiations with the parties in interest with a view to obtaining his appointment as trustee, and that on or about the 1st day of October, 1902, the defendants notified him that they would not accept the lease, but did not place their refusal upon the ground that there was insufficient tale or mica on the premises. The defendants did not take possession of the property or perform any of the covenants or conditions of the agreement. Shortly after the defendants notified the plaintiff that they would not accept the lease, and before he was appointed trustee or authorized to make the lease, he commenced tins action to recover the liquidated damages of $2,000. He showed that- he performed services and incurred expenses in the steps taken, with a view'to obtaining, his' appointment as trustee, but he did not show the value of his services or the amount necessarily expended, or seek to recover upon that theory.

Without passing upon the question as to whether the plaintiff has .a cause of action against the defendants for the value of his services and the expenses necessarily incurred under the- contract, we are'of opinion that he was not entitled to- recover the liquidated damages.. Those damages the defendants agreqd to pay only in-the event that the plaintiff should be duly appointed trustee of the estate • and duly authorized -to make the lease upon the terms and conditions specified in the agreement,- and upon their refusal to accept the same when,, tendered. Before the plaintiff can call upon the court to determine whether he.is entitled to recover theTiquidated damages — a question, 'not free from doubt in view of the fact that * thó agreement induced'a’trespass upon the lands, "of the estate over which the plaintiff 'had no authority, and also might preclude the exercise of • discretion and judgment and full fine official action as trustee when appointed — it is incumbent upon him, notwithstanding the notification by the defendants that they will not accept" the-lease- to become appointed trustee, obtain authority from the cotirt -to make the lease, and execute and tender ft to the defendants for acceptance before bringing suit.

It follows, therefore; that the judgment should be affirmed, with costs.. . / ,

O’Bbien,. P. J., Patterson, McLaughlin and Houghton,. JJ., concurred.

Judgment affirmed with costs, Order filed.  