Martin v. . Crumb

Cardozo, J„ We are unable to concur with the Appellate Division in its construction of the terms of the plaintiff’s employment. We think he earned his commission when he procured a purchaser who was willing and able to buy the fifteen acres at the price named by the defendant. There is no doubt that when the contract of employment was first made it had relation to that parcel, and to no other. The argument is, however, that by force of the letter of July 20, the contract was changed. The change is said to have resulted from the statement that “after consultation, the parties owning the entire strip to Fresh Pond Road have agreed that they will sell'for $6,500 per acre. ” This was merely a statement that a uniform price had been established for the entire tract. It did not cancel the plaintiff’s authority to sell the fifteen acres, which were owned by the defendant’s client. It did not modify the authority by requiring the sale at the same time of the nine:acre parcel, in which the defendant’s client had no interest. The letter goes on to invite the purchaser to raise his offer of $5,000 an acre, but nowhere conveys the suggestion that he must buy additional land. The defendant had already told the plaintiff that he had no interest in the adjoining parcel, but the plaintiff had requested him to ascertain the lowest price that its owner would accept. In these circumstances we cannot say that, as a matter of law, the plaintiff should have understood this letter as a revocation of the authority which *505 the defendant, at the outset of their dealings, had distinctly conferred. The most that can be said for the defendant is that its meaning is ambiguous, and that its construction was for the jury (White v. Hoyt, 73 N. Y. 505). . The events that followed strengthen the conclusion that the letter of July 20 did not change the subject-matter of the sale. The plaintiff continues to submit offers, expressly limited to the fifteen acres. The defendant, in rejecting them, reminds the plaintiff that the price is $6,500 per acre, but- at no time suggests that the offer should extend to other land. After some weeks of inaction, the plaintiff writes that another purchaser of the fifteen acres is in view, and inquires as a matter of precaution whether the terms are the same. The defendant replies that the terms have not been changed, and urges the submission of an offer. Knowing that the proposal is to buy fifteen acres and no more, the defendant does not dissent, but encourages the broker’s efforts. In all this, we may find some evidence at least of the meaning of the letter of July 20 as interpreted by its author. But the final evidence of plaintiff’s authority may be found in the final interview between the plaintiff and the defendant. There was no suggestion even then that the offer should include other lands. On the contrary, the one objection urged by the defendant had to do with the price. He was dissatisfied with $6,500 an acre, the price which he had named. He was ready to close the transaction then and there for $100,000. Later he reported that $10,000 an acre would be demanded. The purchaser was not rejected because the offer was confined to the fifteen acres. There was never a hint that it ought to be extended to anything else. The purchaser was rejected, if the plaintiff’s testimony is true, because the defendant changed his mind and became dissatisfied with the price. The point is made that the plaintiff’s authority to sell the land for $6,500 an acre was terminated when he *506 reported a lower offer. We are referred to cases which hold that, in order to establish a contract, an offer must be accepted as made, and that a counter offer is a rejection. But plainly those cases have no pertinency here. The defendant made no offer to sell the land to the plaintiff. What he offered to do was to employ the plaintiff as a broker, and that offer was accepted and the contract of employment became complete when the plaintiff undertook to act as broker, and to use his best efforts to find a buyer. He did not put an end to his employment by reporting offers lower than the price named by the defendant. Indeed, he had been expressly directed by the defendant to submit all offers that came to him. The agency might, of course, be expressly revoked; but unless so revoked, it continued for a reasonable time. As late as September 9 the plaintiff was informed by the defendant that the terms of sale were unchanged. We think, therefore, that the Appellate Division erred in dismissing this complaint. There remain, however, questions of fact which, if answered by the Appellate Division favorably to the defendant, would require a new trial. There is the question, for example, whether the plaintiff received the defendant’s letter of September 26 to the effect that an offer of $6,500 an acre would no longer be accepted. The plaintiff denies that he received it, but the defendant insists that there are circumstances which discredit the denial. These questions are not within our jurisdiction, and we express no opinion upon them. The judgment should be reversed, with costs, and the case remitted to the Appellate Division to the end that the question whether the verdict is in accordance with the weight of evidence may be considered by that court (Junkermann v. Tilyou Realty Co., 213 N. Y. 404; Galley v. Brennan, 216 N. Y. 118). Willard Bartlett, Ch. J., Hiscock, Collin, Cuddeback, Seabury and Pound, JJ., concur. Judgment reversed, etc.