Opinion
April, 1907.
Sachs Levy (William Victor Goldberg, of counsel), for appellant.
Steuer Hoffman (Charles L. Hoffman and Henry A. Friedman, of counsel), for respondent.
The action was brought upon a paper of which the following is a copy:
"JOHN FINCK, Esq., 141 Broadway, City:
"DEAR SIR: I hereby authorize you to accept on my behalf a mortgage of $20,000 at 5 per cent. for three years or five years, covering my property 117 East 101st Street. I further agree to pay two per cent. and disbursements in the event of your obtaining an absolute acceptance of the amount specified herein. This option is to remain in force until notified. Truly yours, "(Signed) L. PIERCE."
Upon the trial the plaintiff gave evidence of procuring an acceptance of the loan in the amount and on the terms named, and also of disbursements made in the amount of $20 for procuring appraisals of the property. The defendant's refusal to perform was also shown. The interest was conceded to be $12. The jury brought in a verdict covering the agreed commission of $400, besides the disbursements and interest. The defendant attempted to prove by the plaintiff and by one of the attorneys for the person who was to lend the money that the plaintiff had agreed to pay to the lender a bonus of one per cent. of the $20,000 which was to be paid to his attorneys in the event that the transaction should be consummated. The argument is made that this commission of $200 was saved to the plaintiff by the failure of the defendant to perform and that it should be allowed to the defendant on the amount recoverable, as, otherwise, the plaintiff would be in a better position through the defendant's breach than he would have been through the defendant's performance. As was said by this court in Finck v. Menke, 31 Misc. 748: "Where a breach of contract occurs, the aggrieved party is not always entitled by way of damages to the stipulated compensation. The recovery must be confined to the actual loss sustained. It is fundamental that the plaintiff cannot derive a greater advantage from a breach than from a performance." I am of the opinion that the testimony referred to should have been admitted, not for the purpose of varying the contract between the parties, but for the purpose of showing what amount the plaintiff was entitled to recover on the equitable principle above stated.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
GILDERSLEEVE and ERLANGER, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.