Opinion
January 24, 1908.
Herman Aaron, for the appellant.
H.T. Dykman, for the respondents.
The plaintiffs were employed to sell the real estate owned by the defendant at White Plains for $70,000 at the usual commissions. No modification was made of the contract of employment, nor was there any evidence from which this court could find that the contract was changed by implication. The plaintiffs were to sell the entire parcel, but were able to find purchasers for only two portions of the whole; after the lapse of a reasonable time, the defendant, independently of the plaintiffs, sold the two portions to the purchasers the plaintiffs had found; the balance had not been sold when this action was begun. The plaintiffs have had judgment for commissions on the two portions sold. We think the learned referee fell into error by holding that the contract of employment was changed by implication. The familiar principle of law that before the plaintiffs can recover on such a contract as this they must show performance of the entire contract is applicable to the facts presented by the record here, and the judgment must be reversed for want of evidence to sustain it, and a new trial granted, costs to abide the event.
WOODWARD, JENKS, HOOKER, GAYNOR and MILLER, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.