
    Barkley v. Olcott et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    May 27, 1889.)
    1. Factors and Brokers—Commissions—Ruining Market.
    Plaintiffs assignor was authorized to sell defendants’ manufactory for §125,000.-He found parties willing to take a lease of it for six months, with privilege to purchase it for the price stated. Defendants said to one M., about the same time, that they.would be glad if a purchaser could be found at §100,000, but it did not appear that this remark ever reached the proposed lessees or any intending purchaser. There was no evidence that the property had a market value of $125,000, except the-above proposal to lease. Seld, that defendants’ statement did not destroy the market at §125,000, so as to entitle plaintiff’s assignor to the commissions he would have made in case of sale.
    2. Same—Termination op Authority.-
    Plaintiffs assignor wrote to defendants, saying, in regard to the sale, “My only-offer at this writing is ” the proposal to lease, with privilege to purchase; also that he was obliged to leave for Denver; and adding, “So I leave this matter in your hands now. X have brought it to a focus, and leave you to arrange with” the proposed lessees, “and know that if it goes through you will pay me what is right for' commissions, etc., and if it does not go through, and you sell elsewhere, you will send me check for my time, trouble, and expense to date. ” Seld that, on failing to make an arrangement with the parties mentioned, defendants were justified in-dealing with the .property as they chose.
    Appeal from circuit court, Albany county.
    Action by George Barkley against Dudley Olcott and others, to recover' commissions. The court directed a verdict for defendants, and plaintiff appeals.
    Argued before Landon and In&alls, J.T
    
      Smith c& Wellington, for appellant. M. T. <6 L. G. Hun, for respondents.
   Landon, J.

Gorham, the plaintiff’s assignor, had a contract with the defendants, whereby he was given the exclusive privilege for six months from December 12, 1887, subject- to be revoked by a notice of 80 days, to sell a certain iron-making establishment of the defendants for $125,000, upon a commission of $5,000. He did not effect any sale, but brings this action to recover his commission, alleging that the defendants by their action “broke the market, ” and thus deprived him of the opportunity to earn his commission. The trial court, at the close of the case, directed a verdict for the defendants. The testimony, taken in the favorable light in which plaintiff’s-counsel states it, is that about March 20, 1888, a committee of three persons, proposed to Gorham to hire the property for six months, with a right to buy' it at $125,000 at the end of that period. What the conversation between Gorham and this committee was does not appear, but Gorham testifies that he then went to the defendant King, and stated to him, in the presence of the--other defendants, that the committee had told him that they had been offered -the property at $100,000, and that Mr. King admitted that he had told a gentleman in New York (a Mr. Mould) that the property was in Mr. Gorham’s -hands for sale at $125,000, but that the defendants would accept $100,000 for it. Mr. King denied this conversation, but admitted he had said to Mould •that he would be glad if a purchaser could be found at $100,000. Gorham testified that the offer to sell at $100,000 ruined the market at $125,000. It -does not otherwise appear that there was any market of the property at $125,-■000, nor even at $100,000. The nearest approach to a market at $125,000, shown by the evidence, was the proposed option of the committee, to be determined after the experimental lease for six months. No one testified that the committee had said that the property had been offered to them at $100,000, or that, if they made the statement, they had any foundation for it, or that the remark of Mr. King liad reached them. There is no evidence that the conversation between Mr. King and Mr. Mould ever reached the market or any intending purchaser. Before a jury would be justified in finding that such a remark prejudiced Mr. Gorham, there ought to be some evidencetending.to show that he probably had or could have found a market at $125,000, and that the remark reached it. We may concede that such a remark, if not contradicted, would ruin the market at $125,000, but a jury ought not to find .that there was a market thus ruined, in the absence of evidence tending to • show it, and in the presence of evidence, which the case affords, tending -.strongly to show that there was no such market. The result of the conversación between Gorham and the defendants in March was that on March 23, 1888, Gorham solicited and obtained the right for 10 days to sell the property for $100,000. On the 3d of April, 1888, he wrote the defendants: “ My only .offer at this writing is one from Messrs. Weed, Clark, and Weston, [the committee above mentioned,] who would like to lease for six months, with privilege to buy. * * * They will not buy without leasing first.” The letter then stated that he was obliged to leave for Denver, and added: “So I leave •this matter in your hands now. I have brought it to a focus, and leave you -.to arrange with Mr. B. G. Clark, 52 Wall street, N. Y., and know that if it goes through you will pay me what is right for commissions, etc., and if it .does not go through, and you sell elsewhere, you will send me check for my time, trouble, and expense to date. ” No arrangement was completed with this committee, and the defendants on April 7, 1888, sent a formal notice to the plaintiff terminating his authority, and gave authority to Mr. Mould to -sell the property at $100,000, subject to Mr. Gorham’s rights, if he had any. The defendants certainly had the right to act upon Mr. Gorham’s letter of April 3d, and to assume that the transaction he was negotiating was his final . one respecting the sale of the property, and that he left its further charge in their hands, and, in case of iH: failure, permitted them to sell the property elsewhere. The net result is that Mr. Gorham failed to market the property, .and has failed to show that he did so through the fault or misconduct of the defendants. It does not appear that the property has since been sold, and therefore no case is presented in which the defendants have in any way been benefited by Gorham’s efforts. We think that in no reasonable aspect of the ease would the jury have been justified in finding for the plaintiff.

Ingalls, J., concurs.  