Waterman v. Boltinghouse

Thornton, J. This is an action by plaintiff to recover commissions for an alleged sale of land. He never produced a purchaser ready and willing to buy on the terms of his employer, the defendant. He cannot, therefore, recover. (Dolan v. Scanlan, 57 Cal. 261; Moses v. Bierling, 31 N. Y. 462; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; 22 Am. Rep. 441.) Here the plaintiff had the exclusive right to sell for a term ending January 1, 1889, and the defendant, during this period, himself effected a sale. Though the plaintiff had the right to sell, to the exclusion of his employer, still he cannot recover his commissions unless he has produced a purchaser ready and willing to buy as above stated. This is expressly held, and correctly held, in Moses v. Bierling, supra, which is a case similar to this. The plaintiff argues this case as if it was a suit to recover damages for defendant’s breach of contract. The complaint does not set forth any such action, but one to recover the compensation agreed to be paid on a sale. There is no error. Judgment affirmed. McFarland, J., and Sharpstein, J., concurred.