
    Charles Bab, Resp’t, v. Moritz J. Hirschbein, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 2, 1891.)
    
    Bbokebs—Commissions—Evidence .
    Plaintiff was employed by the owner of premises to sell the same on condition that the purchaser should pay the commissions, and procured defendant as a purchaser, who entered into a written contract which provided that he should pay the brokerage. The title proved defective and defendant refused to carry out the contract. In an action for commissions the answer set up an agreement between defendant and plaintiff whereby the latter was to receive commissions only in case the title was good. The court excluded evidence to show such agreement. Held, that there was no right of action in the plaintiff under the written contract between the vendor and defendant; that the only recovery which could he upheld must rest upon the oral agreement between plaintiff and defendant, and it was error to exclude evidence as to what such agreement was.
    Appeal from judgment of the general term of the city court of New York, affirming judgment in favor of plaintiff, entered on verdict.
    
      John Henry Hull, for app’lt; Maurice Rapp, for resp’t.
   Allen, J.

This is an appeal from a judgment of the city court, affirming a judgment which was entered upon a verdict at a trial term of said court in favor of the plaintiff. The action was brought by the plaintiff to recover from the defendant a broker’s commission for the sale of property. An agreement in writing was entered into between the vendor and defendant which contained the following clause: “ And the party of the second part agrees to pay all commissions or brokerage arising by reason of the sale of said property." The agreement was never performed, as the title proved defective, and the contract was afterwards cancelled.

The complaint alleges that one Lane, the owner of the property, employed plaintiff to sell the same upon condition that the purchaser should pay the commission on the same, and the plaintiff procured the defendant to purchase the premises at the price of $28,500, and that defendant, well knowing the terms upon which the plaintiff was employed, agreed to pay the plaintiff’s ■commission. The answer is a denial of the allegations of the complaint, and as a further defense, alleges an agreement between defendant and plaintiff whereby plaintiff was only to receive commissions in case the "title to said premises proved good ; that the title proved defective and that therefore plaintiff was not entitled to his commission. If the plaintiff had a cause of action against the defendant for his commission as .broker upon the sale of this property, it necessarily was based upon the oral contract between the plaintiff and defendant and the agreement by the defendant to pay the plaintiff’s commission. Sufficient is pleaded in the complaint to support an action upon the oral contract. There was no right of action in the plaintiff under the written contract between the vendor and the vendee.

The case of Lawrence v. Fox, 20 N. Y., 268, and other kindred cases, have no application, According to the doctrine of those cases, to entitle the plaintiff to an action on this clause of the contract, it must have been made for his benefit, he being neither a party nor privy to the contract, nor to the consideration. This clause of the contract was for the benefit of the vendor and not for the benefit of the broker, and presumably the vendor sold the property for less than he otherwise would on account of this provision in the contract

The trial of the case in the court below, however, was conducted upon the theory that the action was brought upon the contract of sale between the vendor and the purchaser; and the case was presented to the jury by the learned justice at trial term upon that theory, for he charged the jury that there was but one question for them to consider and that was who was the cause of Lane and Hirschbein’s signing the contract; thus assuming that if the plaintiff was the procuring cause of the contract he was entitled to recover under the contract irrespective of any oral contract on the part of the defendant to pay the commission and irrespective of the further question whether or not there was any agreement between the plaintiff and defendant that no commission should be paid if the title proved bad. These were matters for the consideration of the jury in deciding as to what was the oral contract, if any, between the plaintiff and defendant. The defendant was sworn as a witness and testified as to what the contract between him and plaintiff was, and swore that he said he would not sign the contract unless Mr. Bab stated he should not pay the commissions if the title was not good and that Mr. Bab so stated in the presence of Mr. Hassey. The court of its own motion struck out all the evidence of the witness as to any contract that he had made that he should not be held liable for commissions unless the title was good, on the ground that whatever was agreed between them was merged in the written contract. After this the witness further testified that it was agreed that the plaintiff was not to have a commission unless the title proved good. At the close of the testimony of this witness, upon the motion of plaintiff’s counsel to strike out parts of his testimony as irrelevant, immaterial and incompetent, the court said, “ The motion is granted as to all the evidence given by this witness as to what the contract was as to the payment of the commissions, on the ground that it is merged in the written contract; ” and to this the defendant’s counsel took an exception.

We think this such error as requires us to reverse the judgment. The only recovery which could be upheld under the circumstances of this case must rest upon the oral agreement between the plaintiff and the defendant as to the payment of commissions. The defendant’s testimony as to what the agreement was between him and the plaintiff was entirely withdrawn from the -jury by the action of the trial judge. We think there should be a new trial of this case, and the judgment is accordingly reversed, and a new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concur. 
      Reversing 33 N. Y. State Rep., 423.
     