| NY | Sep 15, 1866
By the Court.
[After stating the facts as above.] — I think the decision was erroneous. The duty of the broker consisted of bringing the minds of the vendor and vendee to an agreement. He could do no more. He had no power to execute a contract, to pay the money for the one side, to convey the land on the part of the other, or to compel the performance by either of their duties. The plaintiff produced a purchaser, willing and ready to accept the terms of the defendant, and able to perform the obligation on his part. He had then earned his commissions, and it would be a singular conclusion of the law that the refusal of his employer to complete the bargain should destroy his right to them. His right to the commissions depended upon the successful performance of the service, and upon nothing else. On the one hand, however much time he might devote to the interests of the defendant, unless he was successful in finding a purchaser, he was entitled to no compensation; and on the other his right was perfect, so soon as that was performed. Moses v. Bierling, 31 N. Y. 462; McGavoch v. Woodlief, 20 How. U. S. 221; Koch v. Emmerling, 22 Id. 69. In the case last cited, as in the present, the broad ground was assumed “that no contract of this character can be specifically enforced unless it has been fully executed.” Id. 73. The court says: “ Where the vendor is satisfied with the terms made by himself through the broker' to the purchaser, and no valid objection can be stated to the contract, it would seem to be clear that the commission of the agent was due, and ought to be paid. It would be a novel principle, if the vendor might capriciously defeat his own contract with his agent, by refusing to pay him when he had done all that he was bound to do. The agent might well undertake to procure a purchaser, but this being done, his labor and expense could not avail him, as he could not coerce a willingness to pay the commission which the vendor had agreed to pay. Such a state of things could only arise from an express understanding that the vendor was to pay nothing unless he chose to make the sale.”
expressed the opinion that Moses v. Bierling, 31 N. Y. 462, was decisive of this case.
All the judges also concurred in the opinion of Hunt, J., except Morgan, J., who dissented.
Judgment reversed and new trial ordered, costs to abide the event.