
    James H. Walling, Respondent, v. John P. Cranford and Others, Appellants.
    
      Commission for procuring a paring contract for one block —it is error tó compute it at one-third of the contract price for three blocks-—-submission to the jury of the question of usual prices.
    
    in an action to recover commissions agreed to ¡be paid where a contract was procured for paving three city blocks with asphalt, it was conceded that the plain- , tiff was entitled to commissions on the contract price for paving one block. There was no evidence as to the contract price for paving each separate block,, but only as to the aggregate price received for paving the three blocks.
    
      Held, that it was error for the court to direct a verdict for the plaintiff based upon, one-third of the aggregate contract price, on the assumption, not warranted by the evidence, that the blocks; were of equal dimensions.
    
      The plaintiff’s right to recover commissions on the contract price of the other two blocks was dependent upon whether the defendants secured the contract at their “ usual prices,” and there was evidence of but one bid by the defendants prior to obtaining the contract in question, which was seventy-five cents per square yard more than the price at which they took the contract in question.
    
      Held, that the court erred in refusing to submit to the jury the question of “usual prices.”
    Appeal by the defendants, John P. Cranford and others, from an order of the Supreme Court, made at the Kings County Trial Term, and entered in the office of the clerk of the county of Kings •on the 21st day of June, 1897, granting the plaintiff’s motion for a new trial made upon the minutes, the court having directed a verdict in favor of the plaintiff for $154.67 damages, but having refused to allow the plaintiff to go to the jury upon all the issues in the action.
    
      Albert E. Lamb, for the appellants.
    
      F. De Lysle Smith, for the respondent.
   Goodrich, P. J.:

The defendants are dealers in Trinidad pitch lake asphalt, and have been contracting for repaving streets in the city of Brooklyn with asphalt. In December, ■ 1894, the plaintiff had an interview with the defendants, in which he informed them that the residents of the block in Hancock street, between Reid and Stuyvesant avenues, desired to have their street repaved with asphalt, and asked what they would pay him to secure the required consent of the property owners. The defendants agreed to give the plaintiff two and one-half per cent of the cost of the work thus obtained. The defendants subsequently, and on December 19,1894, wrote the plaintiff a letter embodying this agreement and inclosing a petition to be signed by the residents. A few days later the defendants sent to the plaintiff a substituted petition for the same block, and the additional pavement of Hancock street from Stuyvesant* to Sumner avenue. The plaintiff, in answer to the last letter, wrote the defendants: I understood that, in the course of your securing contract for laying the pavement on these three blocks, I was to receive a commission of two and one-half per cent, on amount of contract, as in the case of the block Reid and Stuyvesant avenues, hut you do not so state in your letter. Please advise me if you understand the same terms to apply to the three blocks that you offered me on the one in your letter of Dec. 19, 1894.”

On December twenty-eighth the defendants wrote the plaintiff a letter, saying, “the conditions of the commission is extended to cover the three blocks. I ought to add, however, that the pavement must' be Trinidad Pitch Lake asphalt, and the contract awarded to us at our usual prices.”

At the trial it appeared that the defendants were the only contractors in the city who had the light to use Trinidad pitch lake asphalt. The defendants admitted their liability to pay the commission on the amount of the first block, but denied any liability .as to- the additional blocks, on the ground that the contract between themselves and the city did not require the use of Trinidad pitch lake asphalt, although they obtained the contract and_subsequently used that kind of asphalt in the construction of- the work; they also claimed that, by reason of the omission of the contract to specify that such quality of asphalt must be used, the contract was open to bids by other contractors, with the result that they, the defendants, were. obliged to bid at less than the usual prices which they received for Trinidad pitch lake asphalt, and that, therefore, the contract was not awarded to them at their usual prices.

The court, at the close of the evidence on both sides, dismissed the complaint as to the latter two blocks and directed a verdict for the plaintiff for $154.67, being two and one-half per cent upon one-third of the entire contract price received by the defendants for paving the three blocks. The plaintiff asked the court for permission to go to the jury upon the question of the liability of the defendants on the other two blocks and as to the- amount of the usual prices received by the defendants, as referred to in said agreement, and the request was denied. Exception was taken by the plaintiff to such refusal, and, upon a subsequent motion for a new trial, the court set aside the verdict and directed a new trial of the action. From this order the defendants appeal. "

It will be observed that there was no evidence as to the amount received in payment for the pavement of the first block. There is evidence as to the price received.for the three blocks together, and. the court directed a verdict for one-third of the gross sum, evidently upon the theory that the blocks were of equal dimensions and that" the contract price received was to be divided into three parts so as to ascertain the amount received for the first block. There was no evidence to sustain such a ruling.

The plaintiff also contends that the court erred in refusing to submit to the jury the question as to what were the usual prices received by the defendants for asphalt pavement referred to in the letter of December twenty-eighth. There was evidence of only one bid prior to December 28, 1894, and this was two dollars and five cents per square yard, but there is no evidence as to the time of such bid, except that it was prior to January, 1895, nor is there any evidence as to any price at any other time prior to the present contract, nor that this was the only price which the defendants had received prior to the contract in question; and this one instance cannot be deemed sufficient evidence to enable the court to decide, as matter of law, what the usual price was at the time of making the contract in question. There is evidence of other contracts at a subsequent date, from one dollar and sixty cents per square yard down to one dollar and twenty-three cents. The price named in the contract in question was one dollar and thirty cents, and the defendants contend that they were compelled to make a bid below their nsual prices because the contract did not require the use of Trinidad pitch lake asphalt. The language, however, of the contract which was in evidence seems to require the use of that sort of asphalt or its equivalent, and, even if this view is not correct, it will be observed that the letter of December twenty-eighth only required “ that the pavement must be Trinidad Pitch Lake asphalt,” not that the bids must require its use.

An examination of the evidence convinces us that the refusal of the request by the plaintiff to have the question of “ usual prices ” submitted to the jury was error, or, at least, that there was no evidence to justify the dismissal of the complaint as to the cause of. action concerning the last two blocks, and that this was error for which the learned court properly set aside the verdict and ordered a. new trial.

The order is affirmed, with costs.

All concurred.

Order granting new; trial affirmed, with costs.  