Opinion
October, 1897.
H.J. Hindes, for appellants.
Manheim Manheim, for respondent.
This is an appeal by the defendant from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial on the judge's minutes.
The action was brought to recover a broker's commission. The plaintiff, as broker, negotiated an exchange of real estate and, on November 6, 1895, the following agreement in writing was entered into between the parties.
NEW YORK, November 6, 1895.
"Agreement between Lazarus Wolf and Louis Schachne and Siegfried Schachne concerning purchase of 359 and 361 East Forty-ninth street, and Nos. 883 and 885 First avenue in the city of New York for the price of $30,500. This amount to be paid as follows: First mortgage, $18,000; second mortgage, $1,000; paid to-day, $20; to be paid on contract, $480; on taking title, $2,000; the balance of $9,000 (nine thousand dollars) to be paid by Louis Schachne and brother by transferring certain lots and houses they own in Schenectady, N.Y., contract to be made November 7, 1895.
"As this agreement is made without Louis Schachne's and brother's attorney, and good only if their counsellor approves, this agreement is held subject to this special provision: Louis Schachne and brother promise Mr. Wolf after the consummation of these transfers to give at least $1,000 on the Schenectady property on bond and mortgage provided proper time be agreed upon, is given.
"LOUIS SCHACHNE BRO."
This memorandum of agreement specially provides "contract to be made Thursday, November 7, 1895. As this agreement is made without Louis Schachne and brother's attorney, and good only if their counsellor approves, this agreement is held subject to this special provision."
This shows that in law this agreement is made upon a condition, and is dependent upon the performance of that condition, and if the condition is not complied with, no obligation thereunder arises and no rights thereunder attach.
The rule of law is that a broker is entitled to his commission when the minds of the parties have met on every material particular of the transaction. Here, in this case, however, the minds of the parties in regard to the transaction have never met, because the validity of the contract was made dependent upon the condition that the defendants' attorney approve of the contract. The defendants' attorney never approved of the contract.
In that event the contract and the whole transaction was to be null and void to the same effect as if no transaction whatsoever had been agreed upon and entered into between the parties.
For that reason the condition upon which the broker's commission depended and which entitled him in law to recover was never fulfilled, and he is not entitled to recover. Hoffman v. Gallaher, 6 Daly, 43; Glenny v. Lacy, 1 N.Y.S. 513.
Judgment reversed and a new trial granted, with costs to the appellants to abide the event.
FITZSIMONS and CONLAN, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.