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Opinion of the Court, per ALLEN, J.

the authority, construed with respect to the occasion and the necessities of the principal, necessarily called for the employment of a tug-boat, already manned and equipped, ready for immediate service.

It did not contemplate, and cannot, in the absence of any necessity for such action, or evidence of the existence of a custom or usage, be construed as authorizing the charter of a boat without equipment, supplies or crew, and the fitting her out for the brief service required. Such a course would greatly delay the sending of the relief boat when dispatch was needful, perhaps, to save the vessel ashore and in peril, and increase the cost to the defendant, and leave him, at the end of the few days for which the service of the tug should be needed, with all the unused equipments and supplies on hand. If it had been shown that a tug-boat could not have been had upon other terms or except upon the condition that she was to be manned or officered by the defendant, and to be taken to the place designated at his risk, it is possible that the authority to bind the principal to this extent might be implied as one of the necessary incidents of the power conferred. But there was no such proof given. On the contrary, the clear inference is that tugs in abundance could have been had in New York already fully manned, equipped and supplied for the voyage.

The authority was not understood by the plaintiff to extend to the hiring of a boat, to be taken from New York to the Delaware breakwater by the servants and agents, and at the risk, of the defendant. The hiring was of the boat, with her master, crew and equipments, at an agreed rate per hour, the owner hiring and paying the crew, and furnishing all the supplies except coal, for which the defendant was to pay.

The power was fully executed by the hiring of the boat, with her crew and equipments, to go upon the expedition; and if, as a part of that hiring, the agent agreed to furnish a pilot for the voyage, as he did agree to furnish coal, it was within the terms of the powers conferred as a part of the

Opinion of the Court, per ALLEN, J.

“trade,” one of the terms of the contract which he was authorized to make.

The agreement to furnish either coal or pilot was but an agreement to pay the cost of both in addition to the hourly compensation of $4.50 agreed upon, and thus construed, it bound the principal. But he was not in terms authorized, and the necessities of the agency did not require, and there was no custom or usage proved, authorizing the agent, in addition to the terms agreed upon, to assume in behalf of his principal the perils of the service, or the risks of the voyage, or insure against the negligence of any one employed in the navigation or handling of the boat.

He was authorized to agree upon the terms of the hiring, and, probably, might have bound his principal to pay the premium of an insurance; but he could not make the principal an insurer. He was authorized to contract with the owner that the latter should, with the crew and such additional men

as should be necessary, take the boat to the stranded vessel, and there aid in taking her to a place of safety; but this did not include an anthority to engage for the care and skill of the original crew, or such additional men as might be employed.

Had the parties reduced the contract to writing, in the form now claimed in behalf of the plaintiff, it would have provided in terms that the defendant should not only hire and pay for the pilot sought out and selected by the plaintiff, and of whose competency and skill there is no complaint, but should also insure the plaintiff against loss arising from any neglect or want of care in the pilot; and that such pilot should have and take the sole control and command of the vessel and crew, including the master, during the voyage, and that the voyage should be at the risk of the defendant.

This would have been manifestly in excess of the authorization. By no reasonable interpretation can the dispatch be regarded as giving the agent authority in any form to relieve the owner and inaster from the perils of the voyage, and devolve the same upon the defendant as the hirer of a pilot

Statement of case.

who should undertake and have the sole direction and management of the boat and crew during its passage down the coast.

But little aid can be derived from adjudged cases, save to deduce from them the general principles applicable to every special agency. Each case must depend on its own circumstances, and every power construed in reference to the occasion upon and purpose for which it is given. But all the cases are true to the doctrine which restricts special agents to the terms of their powers. (Nixon v. Palmer, 4 Seld., 398; Gibson v. Colt, 7 J. R., 390; Nixon v. Hyserott, 5 id., 58; North River Bank v. Aymar, 3 Hill, 262; Rossiter v. Rossiter, 8 W. R., 494; Story on Agency, § 126 and note; id., $ 132 and note [3]; Smith v. Tracy, 36 N. Y., 79.) The agent had not the power now claimed for him; and his contract, if to the effect claimed, did not bind the principal.

The order granting a new trial should, for the reasons stated, and without considering the reasons assigned by the court below, be affirmed and judgment absolute given for the defendant.

GROVER and FOLGER, JJ., concur.
CHURCH, Ch. J., and PECKHAM, J., concur in result.
ANDREWS and RAPALLO, JJ., absent.
Judgment accordingly.

49 561 132 72



A party having employed a broker to sell real estate, may notwithstanding,

negotiate himself, and if he does so without any agency of the broker, he is not liable to the latter for a commission. To entitle the broker to his commission he must be an efficient agent in, or the procuring cause

of the contract. Defendant being the owner of three parcels of land, employed plaintiff, a

real estate broker, to negotiate sales thereof at a specified price for each. Plaintiff found a purchaser for one, and the sale was effected, upon which plaintiff received his commission. Subsequently defendant informed the purchaser of his ownership of, and desire to sell one of the other parcels,


Statement of case.

and a contract was made between them for a sale and purchase of the latter parcel for the price and upon the terms under which plaintiff had been instructed to sell. Plaintiff took no part in the last sale and gave no information to the purchaser. Held, that he was not entitled to a commission on the sale.

(Submitted May 29, 1872; decided June 4, 1872.)

APPEAL from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of defendant entered upon a verdict.

The action was brought by plaintiff, a real estate broker, to recover a commission for negotiating a sale of two blocks of land in the city of New York. The facts sufficiently appear in the opinion,

Albert Stickney for the appellant. To entitle a broker to recover commissions, he must show his authority to act, and that his agency was the procuring cause of the sale. (Chilton v. Butler, 1 E. D. Smith, 150; Briggs v. Rowe, 4 Keyes, 442.) Defendant could not, by taking the negotiations into his own hands and completing sale, deprive plaintiff of his commissions. (Ludlow v. Connan, 2 E. D. Smith, 112; Glentworth v. Luther, 21 Barb., 146; Stillman v. Mitchell, 2 Rob., 537.) If the purchaser was first introduced to defendant by plaintiff and the introduction led ultimately to the sale, plaintiff was entitled to recover. (Jewett v. Emson, 2 Rob't, 167; Moses v. Bresling, 31 N. Y., 464; Murray v. Currie, 7 C. & P., 585; Wilkinson v. Martin, 8 C. & P., 5; Inslee v. Jones, Bright. [Pa.], 78; Shepherd v. Hedden, 5 Dutch. [N. J.], 334; Stillman v. Mitchell, 2 Rob't, 536; Morgan v. Mason, 4 E. D. Smith, 637.)

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Henry H. Anderson for the respondent. Without some positive act of the broker in reference to the particular transaction there can be no claim for commission. (Barnard v. Monot, 3 Keyes, 203; Lyon v. Mitchell, 36 N. Y., 237; Redfield v. Tegg, 38 N. Y., 212; Briggs v. Rowe, 4 Keyes, 424; Moses v. Bierling, 31 N. Y., 462.)

Opinion of the Court, per GROVER, J.

GROVER, J. The facts that the jury must have found under the charge were that the respondent, being the owner of three separate parcels of real estate in the city of New York, employed the plaintiff, a real estate broker, doing business in the city, to negotiate contracts for the sale of each at a specified price; that the plaintiff informed a person of the fact of his having one of the parcels for sale, who desired to purchase it, and the plaintiff brought this person and the defendant together, and informed the latter of the desire of the former to purchase the particular parcel. Thereupon the defendant commenced negotiations with the proposed purchaser, which terminated in a valid contract of sale for the price specified by the defendant to the plaintiff, upon which the usual commission was paid by the defendant to the plaintiff. Afterward the defendant informed the purchaser of his ownership of and desire to sell one of the other parcels, and a contract was made by them for the sale and purchase of the latter parcel for the price and upon the terms upon which it had been placed in the hands of the plaintiff for sale. The plaintiff took no part in negotiating the last bargain, gave no information to the purchaser in regard to the land being on sale, or otherwise, and so far as appears, had no knowledge of the negotiations in relation thereto until after the bargain was consumated. The judge charged the jury that the plaintiff was not entitled to commission, to which the plaintiff excepted. This was correct. A party having employed a broker to sell real estate, may, notwithstanding, negotiate a sale himself; and if he does so without any agency of the broker, is not liable to him for commission. To earn his commission the broker must be an efficient agent in or the procuring cause of the contract. His commission is earned by finding a sufficient purchaser, ready and willing to enter into a valid contract for the purchase upon the terms fixed by the owner, and having introduced such a one to the owner as a purchaser, is not deprived of his right to commission by the owner negotiating the contract himself. (Lyon v. Mitchell, 36 N. Y., 235; Barnard v. Monnott, 3 Keyes, 203;

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