
    Joshua W. Jones, Respondent, v. Archibald Henry, Appellant.
    (New York Common Pleas — Additional- General Term,
    December, 1895.)
    1. Brokers — Commissions.
    'Where a broker has procured the making of a contract he is entitled to his commissions, although the parties to the contract subsequently agree to a modification thereof without the intervention of the-broker.
    3. Same — Double commissions.
    Where the broker has no discretion as to the price and terms, and', makes no claim on the other party for commissions until his offer has been accepted, his right to recover commissions of his principal is not-affected by his.taking commissions frqm the other side.
    Appeal from a judgment of the District Court in the city-of New York for the third judicial district.
    Action for broker’s commissions.
    
      
      Edwin G. Davis, for appellant.
    
      George A. C. Barnett, for respondent.
   Bookstaver, J.

The facts are undisputed. ' The plaintiff, a real estate broker, called upon the defendant to ascertain whether he would buy a house in Fifteenth street. After some .negotiation as to the commission to be paid, the deféndant agreed to pay him $100, “ to buy 150 West Fifteenth street for $20,000 free and clear.” Plaintiff submitted this offer to the vendor and it was accepted. He told the vendor that he was: to receive $100* commission from the vendee, and that inasmuch as the regular commission was one per cent,, he felt that he ought to receive more than that. The vendor thereupon agreed to pay. him $100 and- subsequently did so. A contract was drawn up and, signed in the terms agreed upon, but before the title passed a new contract was entered into without the knowledge of the plaintiff, whereby the vendee agreed'to take the property subject to a $12,000 mortgage.

It thus appears that the plaintiff procured a contract from the owner of the house to sell it to the defendant upon the terms that the plaintiff fixed and was willing to pay for it. This entitled him to his commissions. The fact that the seller afterwards found himself unable to complete the sale according to the -terms, because a mortgage then upon the premises was not yet due, cannot deprive the plaintiff of his right to the. agreed commissions. And the fact that the defendant subsequently agreed to a modification of the contract without the intervention of the broker in no way affects his right of action. Besides, it is not essential to entitle a broker to his commissions that he should have procured a purchaser upon the precise ter ms named by the principal at the time of the employment. If, through the instrumentality of the broker, the parties meet and negotiations are thus, opened between them, which, continuing without withdrawal by either party therefrom, culminate in a sale, though for a sum less than that originally demanded, and upon terms deviating from those first fixed by the principal, the broker is entitled to his commissions. The principal possesses an undoubted right to adhere to the price and terms originally fixed, but if he deviates - therefrom and consents to a modification thereof, and thereupon concludes the sale with the person procured by the broker, he ratifies the latter’s departure from his instructions and is liable for the commission. Levy v. Coogan, 16 Daly, 137; Gold v. Serrell, 6 Misc. Rep. 124; 55 N. Y. St. Repr. 696.

It is further claimed that the broker cannot recover a commission from both sides. This is ordinarily true, except where the broker acts as a mere middleman, or such double employment is known to both parties, or where he is not vested with discretion respecting the price and. terms. Haviland v. Price, 6 Misc. Rep. 372; 56 N. Y. St. Repr. 402; Bonwell v. Auld, 9 Misc. Rep. 65. In this case the broker did not ask a commission from the vendor until after the offer he submitted had been accepted. He had no discretion as to the price. The terms were fixed by the vendee. We think, therefore, that the interests of the vendee were not affected by plaintiff’s accepting a commission from the vendor, and that under the circumstances he is entitled to a recovery.

Judgment affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed, with costs.  