Opinion
April Term, 1899.
Judgment reversed, new trial ordered, costs to appellant to abide event.
The action was to recover a broker's commission and grew out of an exchange of property effected between the defendant and one Robert A. Chesebrough. The facts involved have been fully set forth in the opinion in the action of this plaintiff against Chesebrough handed down at this term of the court. ( Walton v. Chesebrough, ante, p. 665.) Were the facts exactly similar the conclusion would necessarily be the same, but the cases are to be distinguished for the reason that the essential elements presented in the Chesebrough action which justified the submission of questions to the determination of the jury are wanting in the present case. As to his relations with the defendant, the plaintiff testified that he had known him previous to the transaction and saw him at the St. Lawrence apartment house, when a conversation was had with reference to an exchange of property; that on that occasion, the defendant expressed a willingness to sell or exchange, and assented to his proposition that, if a trade could be effected, the defendant should pay him a commission of one per cent; that the defendant said that there was no objection to his receiving a commission from the other party also; that he then asked the defendant if he knew Mr. Chesebrough or of his property; and, receiving a negative answer, asked for and obtained the defendant's card, and the defendant promised to go and see Mr. Chesebrough; that, in addition, he went himself to Chesebrough and gave him the defendant's card; that he thereafter made several attempts to see the defendant but was unsuccessful; that he finally saw a notice in the newspapers that the exchange had been effected, and then demanded his commission. If we assume that there was sufficient in this evidence to justify the inference of employment, and that the plaintiff had first brought to the defendant's attention the subject of a trade with Chesebrough, there is nothing to show that he did anything under the employment, or rendered any services to the defendant for which he is entitled to be paid. The defendant admitted the conversation in reference to a possible sale or exchange, but denies that the plaintiff mentioned Mr. Chesebrough's name, or that anything was said about the plaintiff's right to obtain a commission from the other side. It is unnecessary, however, to discuss just what the conversation was, since it is admitted that the plaintiff did nothing more than suggest a trade, never after having seen the defendant till the exchange was made. And the defendant states that, in answer to a demand for a commission, he said to the plaintiff; "You might be Mr. Chesebrough's broker but you were not mine. I suffered considerable for the want of a broker in this transaction. It entailed a loss on me probably of from five, ten to twenty-five thousand dollars, that I was compelled to conduct the negotiations myself." The distinction, therefore, between the two cases is marked, for, in the present action, although it be conceded that the plaintiff was employed, he rendered no services under such employment; nor did he, as in the Chesebrough case, offer any excuse for his failure to render such services. It is true that in the Chesebrough case, beyond telling about the property to be exchanged and the name of the owner, the plaintiff did nothing, yet he testified that the reason why he performed no further services was because Chesebrough requested him not to do so, but to permit Chesebrough to conduct the negotiations himself, saying that, if he wanted the plaintiff further, he would send for him, and agreeing that, if the trade was made, he would pay the commission. This variance in the testimony in the two actions requires that we should reach a different conclusion; and, in the present case, we think that the motion made to dismiss the complaint should have been granted, the evidence being insufficient to make out a prima facie case, and it was, therefore, error to submit the question of the plaintiff's right to a commission to the jury. Judgment accordingly reversed and a new trial ordered, with costs to the appellant to abide the event. Barrett and Rumsey, JJ., concurred; Van Brunt, P.J., and Ingraham, J., concurred in result.