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Under the will of Maria Louisa Adelaide Peyrot, deceased, her executors were given full power in their discretion to sell, convey and mortgage any or all of her real estate "for thepurpose of carrying out the provisions of this instrument." Assuming to act under this power the executors sought to mortgage the real estate for the purpose of raising funds to loan or advance to the heirs, and with that in view the defendant entered into the contract set forth in the preceding statement of facts. At that time the debts and specific legacies had been paid and, therefore, the necessity for the exercise of the power no longer existed. The disbursing of moneys to the heirs, except upon the final settlement of the estate, was clearly not a purpose for carrying out any of the provisions of the will. The will contains no directions or indication that such a purpose was contemplated by the testatrix. "The extent of a power, like the extent of an agency created by a written power of attorney, must be sought for in the instrument conferring the power, and authority not found there does not exist. * * * Neither can be exercised for a purpose not intended." (Hetzel v. Barber, 69 N.Y. 1, 13.) The suggestion is made that, as one of the residuary devisees was to receive $2,000 less than the others, the executors might mortgage so as to carry out this direction. There is no proof, however, that this was the purpose in the minds of the executors and, even if there was, we do not see how that would change the situation. It could not have been
necessary to make a mortgage for $10,000 when only $2,000 was needed. If the executors had the right to borrow at all it was limited to the necessities of the case and, under the circumstances, the attempt to get a loan of $10,000 was obviously beyond their power. The title company was, therefore, justified in refusing to make the loan.
The question thus arises whether under such circumstances the plaintiff is entitled to remuneration. It has been settled by repeated decisions of this court that where a broker is employed to find a purchaser for real estate, and procures one ready, able and willing to pay, he is entitled to his commissions although the sale is prevented by defects in the vendor's title. (Knapp
v. Wallace, 41 N.Y. 477; Kalley v. Baker, 132 id. 1;Gilder v. Davis, 137 id. 504.) In the last case cited Judge EARL stated the law as follows: "Where the contract of sale is executed between the employer and the purchaser, the right of the broker to his commissions does not depend upon the performance of the contract by the purchaser. If from a defect in the title of the vendor, or from a refusal to consummate the contract on the part of the purchaser for any reason in no way attributable to the broker, the sale falls through, nevertheless the broker is entitled to his commissions, for the simple reason that he has performed his contract." (p. 506.) We perceive no distinction in principle between such a case and one where a broker agrees to procure a loan and completes on his part, but the loan is never consummated because the intending borrower cannot furnish the agreed security. In both cases the broker has done all that he could. He has rendered the stipulated service and it is through no fault of his that the matter is never completed. In both cases the efforts of the broker are rendered futile by the fault or misfortune of the employer, and under such circumstances the employer ought not to be heard to say that the broker has not performed. It is a familiar principle that one cannot avail himself of the failure to observe a condition precedent who has himself occasioned its non-performance; and it has been applied by the English courts to several cases where it
was held that the broker, under circumstances not essentially different from those at bar, was entitled to his commissions. (Green v. Lucas, 33 Law Times R. [N.S.] 584; Fisher v.Drewett, 39 Law Times R. 253.) This view accords with the decisions in this state upon the subject. (Putzel v. Wilson,
49 Hun, 220; Gatling v. Central Spar Verein, 67 App. Div. 50;Dorlon v. Forrest, 101 id. 32; Neftelberger v. Garner,
125 id. 420.)
Although the plaintiff knew the defendant was assuming to act purely as executor, this action was properly brought against the defendant personally. The latter had no power to bind the estate by such a contract. "The general rule is well settled in this state that executors or trustees cannot, by their executory contracts, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, bind the estate and thus create a liability not founded upon the contract or obligation of the testator." (O'Brien v. Jackson, 167 N.Y. 31, 33; Dodd v. Anderson,
197 id. 466; Ferrin v. Myrick, 41 id. 315.)
The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.
CULLEN, Ch. J., GRAY, WILLARD BARTLETT, HISCOCK and COLLIN, JJ., concur; CHASE, J., concurs in result, on ground that it does not appear that the mortgage was required for the purpose of the will.
Judgment reversed, etc.