
    Dio De Kremen, Respondent, v. Isaac H. Clothier, Appellant.
    First Department,
    December, 1905.
    Broker’s contract for commissions — error in charge taking question from jury — right of counsel to refresh witness’, recollection as to contents of letter not produced on notice — when contract for commissions superseded by subsequent contract — when complaint sets out prior contract, .no recovery on quantum meruit under subsequent contract.
    When there is a question as to whether a .prior contract of brokerage to procure a purchaser for lands was superseded by a second and different contract evidenced by the correspondence of the parties, and the defendant has served the plaintiff with notice to produce a letter sent by said defendant which the plaintiff fails to do, it is error for the court to refuse to allow defendant’s counsel to refresh his recollection as to the contents of the letter by suggesting a specific subject (the rate of commissions to be paid) and asking whether it was referred to therein.
    When, in such action by a broker for commissions, the defense gives evidence ■tending to show that commissions were 'not to be paid until the passing of title to the purchaser, and the court charges, ‘ ‘ I should be surprised to have you bring in a verdict upon that point," etc., it is error. Su'ch charge must be construed as substantially withdrawing a question which defendant was entitled to have submitted or as directing the jury to find for the plaintiff on that question. ' •
    The original contract of brokerage, made at a time when the defendant held his property at $100,000, provided for a five per cent commission for the broker. Failing, for some time, to make a sale, the broker wrote defendant asking if he was still willing to offer the property on the same terms. Defendant replied by letter that he did not recall the terms of the former contract, but would now offer the property at $50,000, but said nothing about rate of commissions.
    
      Held, that such reply was in effect a notice that the rate of commissions under the old contract was withdrawn and that the conduct of both parties showed that said prior contract was considered as superseded,- and that the broker, in ■effecting a subsequent sale of the lands at §45,000, would be entitled to recover .only on a quantum meruit, as the new contract was silent as to the rate-of commissions. But that as plaintiff had only set out the first contract for five per •cent commissions, he could not recover as for a quantum meruit under the second contract.
    Under such circumstances it is error for the court to -refuse tó charge that-the subsequent letter of defendant to the plaintiff took the -place of any prior agreement and was the only one to be relied upon.
    Appeal by the defendant, Isaac H. Clothier, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on - the 11th day of April, 1905, upon the verdict of a jury, and also from an Order entered in said clerk’s office on the 5tl: day of Hay; 1905, denying the defendr ant’s motion for a new trial made upon the minutes.
    
      F. K. Pendleton, for the appellant.
    
      Stillman F. Kneeland, for the respondent.
   Ingraham, J.:

The plaintiff was a real estate broker, and brought this action to recover commissions. .

The. complaint alleges an agreement in writing “whereby the said defendant undertook and agreed to pay to' this plaintiff a commission of five per cent of the purchase price of certain real estate situated in the county of Hassau, in the State of Hew York, then owned by. the said defendant, provided the plaintiff should influence or procure the purchase thereof by any parties at a price acceptable to the defendant.” There is no allegation in the complaint as to the value of the services rendered by.the plaintiff,; nor was there any evidence to justify a recovery on a quantum meruit. The plaintiff’s right to recover must, therefore, stand or fall upon his proving this special contract alleged. The plaintiff based, his proof of this contract upon a letter which he received from the .defendant, dated August 6, 1902, and which was. as follows: “ Dear Sir.-^ I am in receipt of your letter of the 3rd. (of) July and 1 return the two notes herewith.- I do not know that I quite understand your letter. 1 am entirely willing to pay a commission of if you sell the two farms at a price I would be willing to accept, but I would not give any one the exclusive agency. Neither would I sell the Dun Farm alone, but both together. * * * If you should have a responsible cash offer to submit for the whole, say 575 acres, I would give you prompt reply. As I wrote you before, however, the negotiation must be conducted with ’me personally by letter.”' The plaintiff further proved a contract made by the defendant te sell and convey certain premises in Nassau county, aggregating 567 acres, for $45,000. It is not disputed that the plaintiff procured this purchaser, introducing him to the defendant in the month of February, 1904. After the contract for the sale of the property was made, the defendant paid to the plaintiff the sum of $812.50-on account of his commissions earned, leaving the amount due from the defendant to the plaintiff of $312.50, based upon an agreement alleged in the answer that the plaintiff should, accept a commission of two and one-half per cent on the purchase price, which, according- to the defendant’s admission, was still due and unpaid. The plaintiff testified to the receipt of this letter of August 6, 1902, from the defendant; that after its receipt he attempted to get purchasers of the property under the terms therein stated.; that he advertised the property, interviewed parties who were likely to buy such properties, took parties to visit the same, and did everything that he could to dispose of it for a period of nearly two years; and finally in the month of February, 1904, he introduced to the defendant a party who made a contract for the sale of the property.

Upon cross-examination of the plaintiff the defendant introduced in evidence a letter from the plaintiff, dated February 17, 1904, in' which the plaintiff says-: “ Since the close of our correspondence in 1902,1 have tried to sell your property several- times but owing tesóme unexplainable cause, when the negotiations came almost to a successful issue, they were suddenly broken off. This occurred so often that I almost despaired of selling your place, but having recently met a gentleman who is looking for such a place & who seems to mean business, I determined to give it another trial, & in the event of success, reimburse myself for the time & work expended on it two years ago. Please inform me if it is now purchasable & if you wish me to offer it on the same terms da oblige.” And the defendant’s answer to this letter which was as follows: “ I do not recall what the price and terms were which you received from me at the time you speak of, hut I will Say that 1 will sell both farms (abotit 5To acres in all) for $50,000, although worth much more. *•*'.* As regards the' terms, I would -try to make them satisfactory to a buyer, and shall be glad to have you report progress.” The-plaintiff having rested, thé defendant testified that when he wrote the letter of August 6, 1902, offering to. pay a commission of five per ;cent, it was written in view of the fact that he was then holding the property at something more than $100,000; that he heard nothing more from the plaintiff until after. fheTTth of. February, 1904, when he received the plaintiff’s letter of .that date and answered it on February 19, 1904; that subsequently he received a telegram from the plaintiff just before the date of the contract asking whether the1 defendant would áccept $45,000 for the property; that he subsequently had an interview with the plaintiff and th.e proposed purchaser at the .office of his attorney in-Hew York on March sixth, the date of the contract, when the contract was signed; that the defendant had not seen the plaintiff between the timé of writing the letter in March, 1902* until this interview, with him at the office of his attorney in. Hew York; that on that day the defendant- told the plaintiff that he would accept $45,000 cash for the place, the.offer that h¿ had then made, but would not pay more than two and a half per cent commission ; nor would he pay any commission until title was taken and settlement was made, and that subsequent.-to that conversation the- contract to sell the property for $45,000 was executed. The defendant then introduced a letter from the plaintiff, dated March 9, 1904, which is as follows: “ D-ear Sir..-—Yours of the Tth inst. rec’d. While it is customary here to pay agents commission when the contract is signed & the first payment made, rather than have any dis^ pute about it, 1 will accept the payment on account you offer, feeling confident that the title will be taken, long before the limit is reached.”' The defendant then called upon the plaintiff to produce the letter of the seventh of March, having, served a notice to produce it upon the plaintiff. It was not produced and the .defendant was asked 'as to its contents. He stated that the substance was (not being^ able to remember the exact language) “ That I never paid commissions, until settlement was made and title taken-, and that I would -not do it in his case.” He. was asked to refresh his recollection, but 'said he could not remember other than that lie had already stated. Counsel for the defendant then commenced a question as follows: Q. Did you in that letter say anything in regard-— ” when the court interrupted, “ I will not allow you to lead,” whereupon counsel for the defendant said, “ I am only going to call his attention,” when the court said, “ I will not allow you to call his attention here.” Counsel for the defendant said, I take it that the rule is in asking a witness in a matter of this kind, after exhausting his general recollection, that it is admissible — The Court: I am not going to listen to any argument on the subject; it' is too dangerous, when the letter does not exist.”

I think this was error. While it is quite true that the extent to which counsel may lead a witness is generally in the discretion of the court, this is not such a case. Counsel Was endeavoring to prove' the contents of a letter which had been sent by the defendant to the plaintiff and which is alleged to hav'e been lost. The original was in the possession of the plaintiff, or had been as he had expressly referred- to it in a letter to which it was a reply. It was not produced, the plaintiff not denying its receipt, but claiming a lack of recollection. The loss of the letter was not the fault of the defendant, and he having stated all that he could recollect of its contents, I think it was competent for his counsel to suggest a subject and ask him whether that was referred to in the letter. While it was within the power of the court to prevent counsel asking a question which stated the contents of the letter he was entitled to ask the witness if it referred to a specific subject, viz., to an agreement, that had been made in respect to the plaintiff’s commission. The counsel, however, was not allowed to frame his question, and as a question might have been competent, it was error to refuse to allow him to ask it. Evidence of the contents of this letter was important in connection with the alleged conversation with the plaintiff as to the amount of his commission, and the time at which it should be payáble.

The defendant further proved that the contract with the purchaser produced by the plaintiff had not been completed; that he had been ready and willing to give title at all times, but the purchasers had not accepted the deed and paid the purchase price.

■ The court submitted three questions to the jury : First, whether under the terms of the contract the commission was five per cent; ■second, whether it was two and a half per cent, and, third, '-whether the payment was due only upon the passing of the title. In relation to this last question, the court said: I am bound to say that upon the question that nothing was to be due until the matter was finally closed, I should be surprised to have you bring in a verdict upon that point in view of the letters in evidence as to the $312.50 which was admitted to be due,, and I do not feel warranted in entirely withdrawing that from you, but 1 do feel that the real issue before you is to determine whether it was two and a half per cent or five per cent,” and to that statement the defendant excepted, whereupon the court said : “ I could"not really leave that under the proofs to them. I will give you an exception.” I am inclined to think that this must be viewed as taking’ from the jury the question as to whether or not it was agreed that commission was not to be payable until the contract was finally completed and the deed delivered, or that it was expressing an opinion to the jury on a question of fact which they would consider as a substantial direction to find a verdict for the plaintiff upon that question.,

The defendant was entitled to h&ve that question submitted to the jury. The defendant testified that the condition upon which he agreed to accept $45,000 for the property (a much less price than he had demanded before) was that the broker would accept two and a half per cent commission, not payable until title was taken and settlement made. If the broker accepted that condition, and the defendant accepted the lower price for the property based upon such an understanding, the broker was bound by if and he was only •entitled to two and a half per cent commission, payable when title was taken and settlement of the contract made. ■ This was all part •of one., conversation. .. If; there .was any evidence: to. sustain .the •defendant’s contention that the commission was to be two and a half per cent, there was evidence to sustain his contention as to the time when the commission was. payable. In considering whether or not this agreement was as testified to by the defendant, and which was substantially one agreement, the jury were bound to consider all the testimony.

There was evidence that after the contract was made the plaintiff had received a payment on account of his commission and signed a neceipt by which he,agreed to return the money paid him if the sale did not go through. It is true that the defendant had subsequently written to the plaintiff offering to pay him the balance of his commission at two and a half per cent, although according to the contract testified to by the defendant that commission was not due ; but he had explained the writing of that letter, and his testimony as to the contract with the receipt of the plaintiff and the defendant’s letter was to be submitted to the jury in determining whether this contract as to the amount of commission and the time it was payable was made or not.

The question as to whether the letter of August 6, 1902, was a continuing agreement to pay to the plaintiff a commission of five per cent when lie sold -the property is not free from doubt. ■ In this letter of August 6, 1902, the defendant said that he was entirely willing to pay a commission of five per cent if the plaintiff could sell the two farms at a price he would be willing to accept. He spoke of one of these farms as having cost $10,0,000. The defendant heard nothing more from the plaintiff for over eighteen months. No offer was made; no acceptance of this agreement by the defendant. Nothing was done until February 17,1904, when the plaintiff wrote the defendant a letter, which stated that the plaintiff had' made an effort to sell the defendant’s property without success, but that he had recently met a gentleman who was looking for such a place and who seemed to mean business. He then asked the defendant whether he was willing to offer the property upon the same terms. This statement as to the defendant’s willingness to offer the property on the same terms seems to me included the commission that the defendant was willing to pay to the broker selling it. The question was not whether the broker should offer the property or whether the defendant would sell the property, but 'upon .what terms the defendant was willing to offer the property. In reply the defendant stated that he did not recall what the terms and price were which you (plaintiff) received from me at the time you speak of,” and then stated the terms upon which he would sell the farms, fixing the price at $50,000. There was here nothing about any agreement as to the plaintiff’s commission, but a distinct statement that the defendant did not recollect the contents of his letter and an implied statement that the plaintiff must act under the terms and conditions in the present letter. I am inclined to think that this was a notice to the plaintiff that the terms and conditions under which the plaintiff was to offer the property contained in the letter of 1902 were withdrawn, and the plaintiff was from thenceforth to act under the authority conferred by the letter of 1904. This-latter letter authorized the plaintiff to act as broker and sell the : property, but as there was in it. no agreement as to compensation he would be entitled to recover only pn the quantuim meruit and not upon ail express contract as to the amount. The offer contained in the letter of August, 1902, had-not been acted upon by either, party, The plaintiff wrote to the defendant to know, if it was still in force, and the defendant in effect withdrew or superseded it by stating that he had forgotten what it was, and there stating the terms upon which he would sell his property. Assuming that the authority contained in the letter of August, 1904, would continue until super- ' seded or revoked, it seems to me that both parties treated it as being no longer in force in consequence of it not having been acted on and as- superseded by the new letter of instructions of February, 1904.

Counsel for the defendant asked the court to charge that the letter of February 17, 1904, was supplemental and took the place of any prior agreement, and was the only letter that could be relied on-in that connection as showing any terms of any agreement previous to the verbal arrangement at. the closing of the contract. This was refused and the counsel for the defendant- -excepted. , I think that counsel was entitled, under the evidence^ to that charge, and that it was error to' refuse it, especially in view of the fact that the court 'had- expressly charged: “You have .in evidence the first letter in I which the defendant offered a commission of five per cent and that contract was in writing, and it bound him, unless there was a subsequent new contract made in the place of that.,”

The judgment -should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, P. J., and Patterson/ J., concurred; Houghton, J., concurred in result.

Judgment reversed, new trial ordered, costs to appellant to abide event.  