author: Monell, J.

text:
    Mary H. Pennell, plaintiff and respondent, vs. Edwin Wilson, defendant and appellant.
    1. A court of equity has power to give relief, where there has been a mistake or omission in a written agreement, and may, in a proper case, conform an agreement to the expressed intent of both parties.
    2. In -such cases, parol evidence of the agreement, or intent of the parties, is admissible to prove that by mistake something material has been omitted in the written contract; or that it contains more than was intended; or that it varies from their common intent, by expressing something different in substance from what was intended by both.
    3. Although the power of a court of equity to give relief in such cases, is unquestionable, it is to be exercised with great caution; and unless' the mistake is clearly made out, by proof entirely satisfactory, the court will withhold relief upon the principle that the written paper ought to be treated as a full and correct expression of the intent of the parties, until the contrary is established beyond reasonable controversy.
    4. A mistake of the law, by the attorney of one of the parties to an agreement only, or a misapprehension of the agreement, by the party whose attorney he was, is not sufficient to justify the reformation of the contract.

      6. A contract for the sale and purchase of land was made on the 1st day of July, 1863. By its terms the deed was to be delivered, and possession given, on the 1st day of November, 1863; and the premises were to be conveyed free of all incumbrances “ except the party of the second part to pay proportion of the taxes for the year 1863, from November 1, 1863.” Held that in view of the fact that the taxes to be paid were those imposed for the year 1863, without reference to the time of confirmation, the plain construction of this clause was that the purchaser was to pay in the proportion of one sixth of the amount; being the proportion which the period of time from November 1, 1863, to the end of that year would bear to the whole of that year. And that unless the evidence was clear, distinct and preponderating, that the written agreement did not express the meaning or intention of the parties, such instrument must prevail.
    6. Seld, also, that the equity was wholly with the purchaser; for it would be unconscionable to compel him, without the clearest proof of his agreement, to pay the taxes from January to July, for six months prior to his contract; and from July to November, while the vendor had the use and occupancy of the premises in question.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 14, 1864;
    decided December 16, 1864.
    The complaint in this action alleges the entering into an agreement, on July 1, 1863, between the plaintiff and the defendant, for the sale and purchase of a house and lot of land in the city of New York; that the agreement provided for the payment of $>4000, part of the purchase money, by the defendant, on the first day of November, 1863, when the deed was to be delivered ; that it was further agreed between the parties, “ that of the taxes which would be confirmed and become a lien on said property, in the month of September, 1863,' the plaintiff would pay the proportion of such taxes, from the date of the confirmation thereof until the first day of November, 1863, and the balance thereof, or the proportion thereof, from November 1, 1863, until the confirmation of the next annual taxes, in September, 1864, should be paid by the defendant.” The complaint further alleges that an agreement in writing was drawn up and signed by the parties, but that said written agreement omitted ly mistake to provide that the proportion of the taxes which would be confirmed in September, 1863, from the date of such confirmation, until the first day of November, 1863, should be paid by the plaintiff, and that the balance thereof, or the proportion, thereof, from the first day of November, 1863, until September, 1864, should be paid by the defendant, but simply provided that the" defendant should pay the proportion of the taxes for the year 1863, from November 1, 1863. The complaint then alleged the payment by the plaintiff of the taxes confirmed September 23, 1863, and the delivery of the deed of the premises to the defendant on the thirty-first day of October, 1863, and a subsequent demand for the payment of the defendant’s alleged proportion of the taxes. The relief demanded in the complaint is, that the agreement as written and signed by the'parties, may be reformed, and the mistake or omission made therein be corrected, so that the same shall conform to the actual' agreement made between the parties, and that the judgment- shall provide for the payment by the plaintiff of the proportion of the taxes from the date of the confirmation thereof, until the first of November, 1863, and that the defendant pay the “balance thereof.
    The defendant, by his answer, denied the making of any other agreement, than such as .was contained in ’the written •agreement signed by the parties.
    The action was tried by a justice of this court without a jury. On the trial the written agreement was given in evidence. It contains the following : “ And the said party of the first part agrees that upon the payment of said sum of $4000 * 8 * that she will convey the said house and lot by a full covenant warrantee deed, free and clear of all incumbrances, except the party of the second part to pay proportion of the taxes for the year 1863, from November 1, 1863. The deed ® * * to bear date and possession of the house ® 8 to be given on the. first day of November, 1863.”
    The justice found, as facts, that it was agreed between the parties, that of the taxes on the said lot which should be confirmed in September, 1863, the plaintiff would pay such a proportion as the time between the date of such confirmation to the first day of November, 1863, would bear to the period of a year, and that the residue of such taxes the defendant should pay. That the attorney drew an agreement in writing, by which he intended, and which was supposed at the time to express the agreement as above set forth, but that, by mistake, such attorney omitted" to fully express in such contract as written by him the agreement as above set forth, in respect to such taxes, but simply provided that the defendant should pay the proportion of the taxes for the year 1863, from November, 1863. "
    The judgment ordered that the written contract between the parties “ be reformed and modified so that the same shall provide, that of the taxes on.said house and lot * * * which should be confirmed in the month of September, 1863, the plaintiff should pay such a proportion as the time between the date of such confirmation, viz. the twenty-third day of September, 1863, to the first day of November, 1863, would be to the period of a year, and that the residue of such taxes should be paid by the defendant. There is a further judgment against the defendant for his alleged proportion of said taxes.
    The defendant appealed from the whole of the judgment.

      J. W. Gerard, for the appellant.

      J. E. Burrill, for the respondent.
   By the Court,

Monell, J.

A court of equity has power to give relief, where there has been a mistake or omission in a written agreement, and» may, in an appropriate action, conform the agreement to the intent of the parties. In such cases, parol evidence of the agreement, or intent of the parties, is admissible, to prove that by mistake something material has been omitted, or that it contains more than was intended, or that it varies from their intent by expressing something different in substance from the truth of that intent. These cases are pehaps the only exception to the general rule that parol evidence is inadmissible to vary or explain a written instrument. (2 Phil. Ev. 566.) The justice was right therefore in admitting the evidence objected to by the defendant, and his exception thereto is not well taken.

Although the power of -a court of equity to give relief in these cases is unquestionable, yet such power is exercised with great caution, and unless the mistake is clearly made out by proof entirely satisfactory, the court will withhold relief, upon the ground that the written paper ought to.be treated as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy. (Gillespie v. Moon, 2 John. Ch. 585. Lyman v. United Ins. Co., Id. 630. Marquis of Townshend v. Stangroom, 6 Ves. Jr. 328.) The language of these cases is, that it requires the most demonstrative proof, especially against the answer denying the mistake. And thevidence must be rejected, unless it is free from doubt, and clearly preponderates. Lord Thurlow, in one case, (Lady Shelburne v. Lord Inchiquin, 1 Bro. C. C. 338,) saying, "it must be irrefragible evidence.” And Mr. Justice Story, in his Commentary on Equity Jurisprudence, saying that relief will not be afforded, “ whenever the evidence is loose, equivocal, or contradictory, or it is in its texture open to doubt or to opposing presumptions.” (1 Story’s Eq. § 157.)

The taxes contemplated by the agreement in this case, were the state, county and city tax for the year 1863, meaning the calendar year from January 1, 1863, to December 31, 1863. These taxes were confirmed and became a lien upon the land on the twenty-third of September, 1863. Upon the lot in question they amounted to $283.15. The dispute between the parties is, whether it was the agreement and intention of the parties, that the plaintiff was to pay-the proportion of that sum, which the period of time between the twenty-third of September and the first day of November (one month and eight days) bore to twelve months, and the defendant the balance; or whether the defendant was to pay the proportion which the period of time between November 1, 1863, and January 1, 1864, (two months,) bore to the whole of the year 1863.

The written contract of sale and purchase was made on the first day of July, 1863. By its terms, the deed was to be delivered and possession given on the first day of November, 1863; and the premises were to be conveyed free of all incumPrances “ except the party of the second part to pay proportion of the taxes for the year 1863, from. November 1, 1863.” The plain construction of this clause,, (in view of the fact that the taxes to be paid were then imposed for the year 1863, without reference to the time of confirmation,) is, that the defendant was to pay the proportion of one-sixth of the amount; being the proportion which the period of time from November 1, 1863, to the end of that year would bear to the whole of the year 1863. And unless the evidence is clear, distinct and preponderating, that the written agreement does not,express the meaning or intention of the parties, the latter must prevail.

The only reliable evidence on the part of the plaintiff is the testimony of Hr. McDermott, the attorney who drew the contract. He testified that he was present at the plaintiff’s house at the time the contract was drawn and executed; that the parties and himself only were present; that he asked the defendant when he would be ready to close the matter; he (defendant) stated that he resided in New Jersey, and that he wished to close the matter on the first of November. The witness says he told the plaintiff there would be a difficulty about that, as the taxes would be confirmed in September and become a lien upon the property ; that if the defendant wished the closing of the matter delayed until November, he must pay the taxes which would be confirmed in September. “He asked me how the taxes were payable. I told him they were confirmed every September, and that when paid the- property ivovld be free from taxes until the following September. After the contract was drawn, he said it was not fair that he should pay the taxes from September until November, as she (plaintiff) would occupy the house during that period. She said she was willing to pay the proportion of the taxes for that time.” The witness said he then interlined the words “the party of the second part to pay proportion of taxes for year 1863, from November 1st, 1863.”

Upon his cross-examination, the witness testified that at the time of making the contract the word “1864” was not used by any one; nor was any thing said on the subject of who was to pay the taxes for the year 1863, from January 1, 1863, to November 1, 1863. That he supposed the taxes of 1863, being paid, relieved the property until September, 1864; that he supposed the taxes were from September, 1863, to September, 1864, and that what he stated to the defendant was based upon relief from lien.

The,plaintiff's evidence is chiefly,a version of what she understood the agreement about the taxes to be. She says, however, that the defendant said he would pay all the taxes except from September to November. But Mr. McDermott testified to no such declaration or agreement.

It does not appear any where in the evidence that the defendant understood the agreement to be as testified to by Mr. McDermott, of that he assented to it. Mr. McDermott did not say to him that he was to pay the taxes from January 1, 1863, and apart from the defendant’s testimony, it is evident that he did not so understand it, and that he never agreed to pay them. He undoubtedly supposed that the taxes were for the twelve months next succeedirig the confirmation; else why did he object to paying from September to November, when the plaintiff would occupy the bouse. Had he understood it, he could have objected with as much and even more force to paying from January to September when the plaintiff had the house in her possession.

It seems to me quite clear that.there was no mutuality; that the defendant did not understand the agreement to be different from what was reduced to writing, and never assented to any other. I do not attach any importance to what took place at the time the deed was delivered. If the defendant made any admission or promise then, it was with reference to his previous understanding that the tax year commenced in September, instead of in January. If the case rested on the plaintiff’s evidence alone, it would not, in my opinion, be sufficient to sustain this action; but the defendant not only by his answer under oath, but by his oral .testimony at the trial, denies that any other agreement was made, than such as is contained in the written contract. He says that at the interview spoken of by Mr. McDermott, Mr. McD. said “you have no objection to pay your proportion of the taxes. You know they are payable in advance.” To which I replied “ I know nothing about taxes, never having bought property before, but that I was willing to pay proportion of taxes from November, 1863, at which time the property was to be transferred to .me.” Upon the whole of the evidence,-the action fails within the principle of the cases that the allegation of mistake must be supported by proof entirely satisfactory. No doubt Mr. Mc-Dermott understood the agreement as he has testified, but the difficulty is, that he does, not undertake to say that the defendant so understood it, or assented to it. At any rate, the case is not free from doubt, which it must be, before the court should give relief. ' *

After a careful reading of the evidence, I have not been able to find it sufficient to sustain the finding of the justice. It entirely falls short of satisfying me that the défendant (whatever may have been the understanding of the plaintiff and her attorney) agreed at any time to pay more than the proportion from November 1 to January 1. There was therefore no mutual mistake. And a' mistake on one side does not authorize the interference of the court. The equity is wholly with the defendant; for it seems to be unconscionable to compel him, without the clearest proof of his agreement, to -pay the taxes from January to July, for six months before be made his contract ; and from July to November when the plaintiff had the use and occupancy of the house.

I think the judgment should be reversed, and a new trial granted with costs to abide the event.

Robertson, Ch. J. It is hardly necessary to quote the provisions of the statutes of this state in reference to the collection of taxes, in order to establish that the fiscal corresponds with the calendar year. (See 1 R. S. 5th ed. pp. 954 to 977.) The special provisions were cited on the trial, and are to be found in the case. Of course no part of the year 1864 forms any-part of the time for which the taxes for 1863 are assessed. The confirmation of an assessment for taxes creates a lien on land, and renders them collectable, but has nothing else to do with the period for which they are assessed. Taxes áre not collectable in advance ; and although paying taxes for any one year may leave the land free from the lien of a tax until the confirmation of the next year’s tax, that does not make the taxes for a specified year, a tax for the period between the two confirmations which is rarely if ever an exact year. Assuming, therefore, that the parties before executing the contracts of purchase and sale in question, had made an agreement to be embodied therein and only omitted therefrom by accident and mistake, a clause to the effect that the defendant should pay the “ balance” of the taxes for 1863, to be confirmed and become a lien on the land in September, after deducting therefrom the proportion thereof from such confirmation until the first of November following, the plaintiff would be entitled to no relief; since such balance is explained by the words, “ the proportion thereof from that date (November 1st) until the confirmation of the annual taxes in September, 1864,” because such period formed no part of the fiscal year 1863, for which such taxes were levied.

The decision in this case finds as a fact an agreement between the parties, that the plaintiff would pay such a proportion of the taxes, which should be confirmed'in the month of September, 1863, as the time between the date of such confirmation to the first of November, 1863, would bear to the period of a year, and that the residue of such taxes the defendant should pay. It also finds as a fact that the attorney who drew up the contract omitted by mistake to express such contract; what kind of mistake is not stated ; from what it originated or how it occurred. I think the testimony of such attorney clearly shows that what was inserted in the contract, which is inconsistent with such agreement, was so done deliberately and if unintentionally, only under a mistaken idea of the law by suck attorney, who acted for the plaintiff alone. The contract was originally drawn exempting all the taxes for 1863 from the stipulation against incumbrances, and at the suggestion of the defendant and by the assent of the plaintiff it was altered to its present form solely because the defendant objected to paying taxes for the time the house was occupied by the plaintiff. Such attorney testifies that he never considered whether “ taxes confirmed in 1868, related back to the first of January of that year,” and that he supposed that the taxes for 1863 were for the time between September 1863 and September 1864. He also subsequently informed the defendants’ attorney to the same effect, and directed the defendants’ attention to the written contract. In his letter demanding payment he also reiterated the language of the contract by saying: “ You agreed to pay the proportion of the taxes from November 1st,” underscoring the word “from.” There-is not a particle .of evidence of a word being said by the defendant, or in his presence by others, of his assuming any portion of the year’s tax for 1363, except as specified in the contract as drawn. At the first interview as testified to by such attorney the agreement was that the defendant should pay all the taxes, and at the second the change was made for the reason before stated. We therefore have no right, in the absence of any statement to that effect by him, to assume that the defendant made the same mistake in regard to the law as the plaintiff’s attorney, and executed the contract in order to accomplish the effect the latter intended. The complaint charges that the agreement omitted wasi that “ the defendant should pay the proportion of the taxes from the lsi of November' until September 1864.” But the plaintiff testifies that the understanding was, that the defendant should pay the taxes from January 1st to September 23, 1863, and that the reason for it was “ that he got the house so cheap,” although she didn’t huno that any thing was said on the subject.

If the law had been as the plaintiff’s attorney supposed it to be, there would have been no necessity to reform the contract in order to compel the defendant to pay the sum adjudged against him. And he certainly does not testify to any express assumption by.the defendant of the proportion of the tax for the time.from January 1 to September 23, 1863. We have then simply the case of tan understanding by the plaintiff, without any thing said to that effect by any one, that the defendant was to pay such proportion and the draft of the contract by her attorney under the belief, inconsistent with such understanding, that it would require the defendant to pay the proportion of such tax for the time between the 1st of January and some nine in September 1864, which he supposed to be embraced in the agreement. I think it plain that the plaintiff understood the taxes /o?:.1863, which was the only thing talked about, to be for that calendar year, while her attorney understood it to be for an imaginary fiscal year extending to September 1864, and that being informed by him that at least five sixths of that tax was to be paid by the defendant, she inferred it must have included the first part of 1863 until.September j and that the only reason why he agreed to pay a tax for a house for a space of time long before he occupied it, was its low price. This' seems difficult to reconcile with the alleged agreement by the plaintiff to pay the proportion of the tax between the 23d of September and the 1st of November, 1863, because she occupied the hoüse during that time as testified to by such attorney.

A mistake of the law by the attorney of one of the partiesor a misapprehension of the agreement by the party whose attorney he was, is not sufficient to justify the reformation of a contract. Even a common mistake,of the law is not enough. (Arthur v. Arthur, 10 Barb. 9.) There is no evidence in this case of any complete and final agreement, except in the contract itself. By that, if the law were as was supposed by the plaintiff's attorney, the defendant would be bound to pay all the taxes paid by the plaintiff, except such part thereof as should be proportioned to the time between the first of November and the time the taxes should be confirmed in 1864. In that case the action would be prematurely brought as regarded the payment of the money, as the proportion could not be determined until the day of confirmation should be ascertained.

I cannot, therefore, find any evidence to" sustain any agreement by the defendant to assume any part of the taxes for 1863, except for the time after the 1st of November of that year ; and I concur in thinking the judgment ought to be reversed and a new trial had, with costs to abide the event. ■


source: Caselaw Access Project

author: Garvin, J.

license: Public Domain

text:
    John S. Wright, plaintiff and respondent, vs. William R. Holbrook et al. executors, &c. defendants and appellants.
    1. A pledge, by a testator, prior to his decease, of stocks, to secure collaterally the payment of a prommissory note given for the purchase money of land agreed to be conveyed, does not amount to such a mortgage, under the provisions of the Revised Statutes, '{yol. 1, p. 749, § 4,) which makes an heir or devisee primarily liable for a mortgage by his ancestor or devisor, upon real estate descended or devised to him from or by such ancestor or devisor, as to bar a recovery upon such note, against the .executor of the maker.
    2. The statute changes the common law as to mortgages, only. It does not refer to any other change, incumbrance or. lien upon the land, legal or equitable. So that where a promissory note is given, by a purchaser, for the purchase money, under an agreement binding the ve'ndor to sell the land, and apply the proceeds of the sale towards the payment of the note, before he can maintain an action upon it, if such contract can be regarded in the light of a lien upon the land,' to be enforced in equity, it will not bring the case within the statute.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard Octctober 22, 1864;
    decided December 16, 1864.
    Appeal from a judgment entered upon the verdict of a jury. The complaint was upon a promissory note,, made by the defendants’ testator, Darius Holbrook, for $8000, dated at Boston, January 21,1856, and payable to the order of the plaintiff, twelve months after date, with interest.

      The facts sufficiently appear in the opinion of the court.

      A. W. Bradford, for the appellant.
    I. By the terms of the agreement, the equitable title to the land therein mentioned was vested in the purchaser Holbrook, subject to be defeated only, in case of non-payment of the note, and the exercise by the plaintiff of the power of sale contained in the agreement. The nominal title was in the plaintiff, but the real interest and ownership were in the purchaser. (2 R. S. p. 111, § 66. Thompson v. Gould, 20 Pick. 134. Seton v. Slade, 7 Vesey, 264-274. Story’s Eq. Jur. §§ 738, 790.) The parties did not prescribe forfeiture on default of payment of the note, but agreed expressly for a sale of the land and the application of the proceeds.
    II. The effect of the whole agreement, taking the note as. part thereof, was to vest in the plaintiff an equitable mortgage upon the lands, which could be foreclosed only by decree in equity or by an execution of the power of sale contained in the agreement. The rights of the parties and their remedies were precisely the same as if the plaintiff had in fact conveyed to the purchaser and taken back a bond and mortgage for the consideration. (Story’s Equity, 440, § 1217. 4 Kent’s Com. § 58, pp. 151, 144, 3d ed. and cases cited.) The case is to be treated then as an action against executors on a bond secured by mortgage. (Neate v. Duke of Marlborough, 3 Mylne & Craig, 407-415. Bac. Abr. Heir & Ancestor, H. 1. 2 Tidd’s Prac. 9th ed. pp. 936-938.)
    III. The testator being domiciled in the state of New York, the law of this state affords the rule for the administration of his personal assets. (Suarez v. Mayor, &c. of New York, 2 Sandf. Ch. 173. Story’s Confl. of Laws, §§ 485-7. Lyman v. Parsons, 20 N. Y. Rep. 103.)
    IV. By the laws of this state, whenever any real estate, subject.to a mortgage by any ancestor or testator, shall descend to an heir, or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, without resorting to the executor or administrator of the ancestor or testator, unless there be an express direction in the will of such testator that such mortgage be otherwise paid. (1 R. S. marg. p. 749, § 4.)
    (a.) The effect of this provision is to throw the payment of the mortgage in the first instance on the land as the primary fund or security, so that the holder of the mortgage must exhaust his remedy upon the land before resorting to the personal estate.

      (b.) The land becomes the principal, and the personal estate the surety
    V. This being the rule of administration, according to the law of the domicil of the testator, under or through whom the devisees must claim, it will be applied to onerate the devisee, and exonerate the personalty wheresoever the lands may be situate.
    VI. By invoking the aid of the forum of the domicil, the. plaintiff submits to and mtist be ruled by the rules there prevailing and regulating the administration of the personalty. (Story's Confl. of Laws, § 18, et seq. Huberus, in Story, § 29.)

      (a.) He certainly can have no greater rights on a.mortgage upon lands situate out of the state, than on a mortgage upon lands situate within the state.
    (6.) The mortgagee claims to charge the personal estate in the first instance ; that estate is administered according to the law of the domicil; and by the law of the domicil the personal estate is not chargeable in the first instance.
    (c.) The question involved pertains to-remedv, and all remedies are governed by the lex fori. (Story’s Confl. of Laws, § 634, a.)

    VII. If.it be said there is no proof of the domicil of the testator, the answer is, that in the absence of proof the presumption is, that the domicil is in the place of the forum where judicial action is invoked. (Best on Presumptions, Law Lib. vol. 31, N. S. p. 144.)
    VIII. In the absence of any proof as to the law of Massachusetts, where the contract was made, and where the land is situate, the presumption is that the law conforms to the rule existing here. (Leavenworth v. Brockway, 2 Hill, 201. Robinson v. Dauchy, 3 Barb. 20.)

      F. N. Bangs, for the respondent.
    I. There being an express provision of the Revised Statutes, (2 R. S. 88, § 32,) which would prevent the issue of an execution in this cause, without leave of the surrogate, no question as to the fund out of which the judgment shall be paid can arise here. That will arise upon an application to the surrogate. The only question that admits of debate in this forum, is whether the note was a valid obligation of the testator, and whether the matters stated in the answer discharged the obligation.
    II. The section in question was intended to introduce a rule in the marshalling of assets in the proper forum, but not as a bar to an action at law. It does not, by its terms, purport to affect the rights of creditors, but only to readjust equities as between heir" and administrator. Johnson v. Corbett, (11 Paige, 265,) was originally a proceeding in the surrogate’s court) involving the marshalling of assets. It will be time to apply the rule when we apply to the surrogate for leave to issue execution. If the action had been against a person still in life, it might as well have been pleaded that his family biblfe was all he possessed, and that thus, by law, his entire estate was exempt from execution.
    III. Although the Code has given admissibility to equitable defenses in what were formerly actions at law, yet the answer does tiot set up even an equitable defense. At most, if at all, it only asserts, by way of bar to an action on a promissory note, that a state of facts may exist which requires the testator’s assets so to be marshalled as to exonerate his personal estate in Whole or in part from the payment of this demand. This is no reason why the court should not pronounce judgment as to the validity of the obligation.- A court of equity would not have stayed the prosecution of an action at law on that ground alone.
    If the above points are not decisive of the appeal, then we contend:
    IV. As a rule for the marshalling of assets, the section would be inapplicable, even in the forum, viz. the surrogate’s court, where it might be proper to discuss it.
    1. The case is not within the terms of the section. There is no 11 mortgage given” by the ancestor. There was a power to sell, expressly reserved by the vendor, but that is no more than impliedly existed in Johnson v. Corbett.

    2. The section relied upon is not a rule for the executor in the distribution of the personalty, but is a rule governing the tenure of real estate.
    3. The lands are outside of the operation of the statute. They are in Massachusetts, where they.would descend or be taken by devise, pursuant to the law of that state, which is presumed to be the same as the common law. (Holmes v. Broughton, 10 Wend. 75. Starr v. Peck, 1 Hill, 270. Abell v. Douglass, 4 Denio, 305. Throop v. Hatch, 3 Abb. Pr. 23.)
    4. Therefore, neither the heir nor the land would be chargeable with the debt, unless the executor, upon-an accounting here, could show that the common law created the charge. The plaintiff could claim the benefit of our statutory rule of distribution, without being barred by a rule which has no subject within this state to operate upon.
    V. Notwithstanding the section relied upon by the defendants, the personal estate of the testator is the primary fund for the payment of the note, even in the surrogate’s court, either at common law or under our statute. (Livingston v. Newkirk, 3 John. Ch. 312. Champion v. Brown, 6 id. 398.) These cases were decided before the Revised Statutes; but Johnson v. Corbett, (11 Paige, 265,) is an authority to the same effect, since the Revised Statutes went into operation.
    VI. As explanatory of the position above taken, and of Johnson v. Corbett, it is submitted that in the marshalling of assets, before the time of the Revised Statutes, there were two cases in which the rule prevailed that the personal estate must exonerate the realty from an obligation of the ancestor. The first was where the ancestor had borrowed money on mortgage. (5 Edmonds’ R. S. p. 338, Bevisers’ note to this section. Duke of Cumberland v. Codrington, 3 John. Ch. 229.) The reason was, that as the personal estate had got the benefit, temporarily, and the ancestor intended and was bound to repay the money, the fund which had got the benefit must bear the burden. The second case in which the rule prevailed was, where the ancestor had contracted to buy real estate, and had died before the contract was consummated by a conveyance. In this case the reason for the rule must have been that the ancestor intended to aggrandise his real estate permanently, at the permanent expense of his personalty, an intention perfectly plain in the case at bar. The section in question was intended only to reverse the rule in its application to the former case. (Revisers’ note, ubi supra.) Its intended effect is, therefore, fully given to it by limiting its application to the first class of cases, as in Johnson v. Corbett. And, to that extent, the rule was altered, as the revisers’ note shows, not because it was a bad one, nor because the reason for it was not a good one, but solely in deference to the presumed understanding of persons making wills.
    VII. The fact that the plaintiff held stock as collateral security constitutes no defense, either at law or in equity.
   By the Court,

Garvin, J.

The plaintiff in his complaint demands judgment against the defendants as the legal representatives of Darius B. Holbrook, deceased, upon a promissory note for the sum of $8000 with interest at the rate of six per cent, alleging the note to he due and unpaid, and that the defendants having in their hands or under their control moneys and property of the deceased more than sufficient to pay the amount of said note and interest, and averring demand of payment. The defendants admit in their answer the allegations of the complaint; except that in relation to the sufficiency of assets. And further allege by way of defense: (1.) That the note was given for the price of certain lands in the state of Massachusetts. (2.) That by a certain agreement for the sale of said lands, the plaintiff has a right to sell said lands, at public auction, three months after said note should fall due, and apply the proceeds of such sale towards the payment of the note. And the defendants claim that no cause of action exists against them as such executors, until the plaintiff’s remedy is exhausted against the said lands, and the said lands shall have been sold under the provisions of the said agreement and the proceeds applied upon the note. That certain stock mentioned in the agreement was taken and held by the plaintiff as collateral to said note, and the plaintiff should account for the proceeds thereof and deduct the same from the amount of said note. Upon the trial of this action' the plaintiff made his case by putting in evidence the note, with a computation of interest, and rested his cause. The defendants’ counsel offered in evidence the agreement and other matters set up in the answer, tó which the plaintiff objected; which objection the court sustained. The plaintiff had a verdict under the direction of the court, for the sum of $10,322.63, to which decision and direction the defendants duly excepted. Judgment was entered upon the verdict, with costs, and the defendants appealed.

It is insisted, and this is the only point of importance in the case, that the plaintiff is bound to sell the land and apply the proceeds towards the payment of the note, before he can maintain an action upon it against the defendants. If this position can be maintained the plaintiff cannot recover; it being conceded that no such sale and application has been made. We are referred to 1 B. B. 749, § 4, as upholding this position and conclusively barring the plaintiff’s right of recovery. This statute provides that whenever any real estate subject to a mortgage given by any ancestor or testator shall descend to an heir or pass'to a devisee, such heir or devisee shall satisfy and discharge said mortgage out of his own property— thus changing the common law rule only as to a mortgage, but does not refer to any other charge, incumbrance or lien upon the land, legal or equitable. Even if this contract is to be regarded in the light of a lien upon the land, which could be enforced in equity, it does not bring this case within the statute. (Lamport v. Beeman, 34 Barb. 239.) This statute does not in terms confine the mortgagor, for a recovery of his debt, to his remedy upon the mortgaged premises, in the first instance; it only fixes the liability to pay the incumbrance upon the heir or devisee out of his own property without resorting to the executor or administrator of his ancestor. It does not bar an action upon the bond until the mortgage has been foreclosed. As between the heir or devisee and the executor or administrator, the former must satisfy and discharge the mortgage out of his own property, unless there be an express direction in the will that it be otherwise paid. There is nothing in the statute to prevent the mortgage creditor proceeding by action upon his bond or foreclosing his mortgage as he shall see fit. It is sufficient to say that this is not the case of a mortgage, and the statute does not bar a recovery upon the note in question. If I am correct, the evidence offered by the defendants was properly excluded, and the judgment should be affirmed, with costs.


author: Robertson, Ch. J.

text:
    Thomas B. Stillman, plaintiff and respondent, vs. Samuel L. Mitchell, defendant and appellant.
    1. A principal who has been brought by a broker into communication with the party with whom he is dealing, cannot deprive such broker of his commissions by taking the negotiation into his own hands and completing the sale; much less deprive him of the benefit of the initiatory steps taken by him, by revoking his authority to complete the transaction. ,
    2. It is sufficient for a broker, in order to entitle himself to commissions bn a sale, to bring his principal in contact with a satisfactory purchaser, with whom he completes the bargain to bring which about the broker was employed as an agent.
    3. In an action to recover brokerage on the sale of steamships to the United States government; Held that the judge properly charged that the main question for the jury to determine was, whether the plaintiff’s action in the matter directed or drew the attention of the navy department, or its agent, to the steamers, as vessels for sale, and led to negotiations that resulted in the purchase; and that he was not bound to charge that the plaintiff’s agency was the procuring cause of the sale.

      4. The only conditions precedent to a right to recover, in such an such an action, are, the original discovery of the purchaser, the starting of the negotiations by the broker, and a final closing of the bargain by or on behalf of the principal.
    5. The fact that a person employing a broker to sell vessels and binding himself personally by a contract under seal to pay a specified commission whenever a sale shall be effected as a consequence of his exertions, is not himself the owner of the vessels, will not deprive the broker of his commissions, or defeat an action brought by him, therefor, against his employer.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 29, 1864;
    decided December 16, 1864.
    Appeal by the defendant, from a judgment and from an order denying a motion for a new trial on a case and exceptions. The cause was tried before Justice White and a jury. • The action was for brokerage and commissions on the sale of the steamers “Augusta,” “Alabama” and “Florida” to the United States, in August, 1861. The agreement between the parties upon which the action is brought was under seal, and dated on the 9 th day of May, 1861, as follows :
    “ Whereas, I desire to sell the steamers Augusta, Alabama, Florida and Star of the South. Now, in consideration thereof, .and of one dollar to me in hand paid by Thomas B. Stillman, of the city of New York, I do hereby constitute him, the said Stillman, my true and lawful agent or attorney, to dispose of said steamers, or either of them, at such prices and on such terms as may be hereafter agreed upon; and I do hereby agree to pay to said Stillman, his heirs or assigns, ten per cent of the total amount that said steamers or either of them may be sold for. Witness my hand and seal, this ninth day of May, 1861.
    Samuel L. Mitchell.” [l. s.]
    The complaint alleges the employment of the plaintiff as a broker of the defendant to procure a purchaser of said vessels, or effect a sale thereof, and the execution and delivery of the agreement, and that the plaintiff entered upon the performance of his duties, as such broker, and exerted his best abilities to 'effect a sale of the vessels,' and expended his time, labor and money in such effort, and went to Washington city and offered the vessels for sale to the United States government, and recommended their purchase by the government, and entered into negotiations for the sale thereof. That afterwards, and in August, 1861, the three vessels were sold to the government for $276,500, in consequence of the efforts and labor of the plaintiff!, and that the defendant has not paid the commissions, or any part thereof.
    The answer denies the allegations of the complaint, except as expressly admitted. For a further answer, it is alleged that the plaintiff, on or about the 9 th of May, 1861, applied to the defendant for his signature to an application for office, and at the same time suggested that he had friends at Washington, and if he had a paper showing his authority, he might be able to sell the steamers, and that the-defendant signed the agreement after persuasion by the plaintiff. That the plaintiff, never to the defendant’s knowledge, expended any money for the purpose of effecting a sale of the steamers, nor did he procure any customer for the ships, or either of them, or introduce, or set on foot any negotiations for the sale of the same. That the steamers were owned by the New York and Savannah Steam Navigation Company, which fact was well known to the plaintiff, and the steamers were sold by the company, without the intervention of the plaintiff, who had abandoned all right to sell them, and the defendant had revoked the authority, and the steamers were sold through another agent, who had been paid by the defendant. For a further answer, it is alleged that no price or terms were ever agreed upon between the parties for the sale of the vessels. On' the com trary, the plaintiff, before the 10th of August, 1861, reported to the defendant that the government would not purchase side-wheel steamers, whereupon the defendant in behalf of the company employed another agent who sold the vessels.
    Before the trial it was stipulated that the pleadings might be amended by either party in any particular, setting up any further claim or defense which might be advisable. Upon the trial considerable evidence was given not relevant to the par-, ticular claim and defense set up in the pleadings, and in view of a possible amendment under the stipulation. At the close of the evidence, the judge asked the counsel if they had amended under the stipulation, as it would be necessary to know in order to shape his charge. The counsel replied that they had not, and did.nbt intend to. The judge charged that the testimony as to matters outside of the issues, as the same were left, must be disregarded by the jury, and that the action was solely upon the written contract between the parties. It appeared upon the trial, that the steamers were the property of the New York and Savannah Steam Navigation Company, of which the defendant was president. The affairs of the company were managed by a board of five trustees, of whom the defendant was one; his son, owning twenty-five shares transferred to him by the- defendant, to make him a director, was another. Mr. Stratton, the secretary, owning a single share, was a third. The other two trustees were out of the city at the time of these transactions, one being in Savannah. The agreement counted on was proved and read in evidence, and the plaintiff gave evidence to prove the services alleged, and rested. Evidence was given in behalf of the defendant in some respects contradictory of that on the part of the plaintiff. There was evidence that the defendant had paid to the agent of the government by whom the steamers were purchased, (Mr. Morgan,) a commission of two and a halfvper cent, and this, with the assent of the plaintiff, was de-: ducted - from the amount claimed, and the jury, under .the. charge of the court, rendered a verdict for $20,837. Several exceptions were taken in the progress of the trial, and to the charge, and upon a case and exceptions a- motion was, made for a new trial, and denied.
    Judgment having been perfected, the defendant appealed.

      G. Dean, for the appellant.
    I. To entitle a broker to recover commissions on a sale of property, two things are necessary to be established, viz : His authority to act as the agent or broker of the defendant, and also that Ms agency was the procuring cause of the sale. (7 Car. & Payne, 584. 8 id. 1. 5 Bosw. 83. 34 Barb. 90. (a.) In the case cited in 34 Barb. Judge Allen dismissed the complaint, and the court, in affirming the judgment, hold: “ Where a negotiation, conducted by a broker, is broken- off before any binding agreement is entered into between the. parties, and thereupon a new agreement is entered into for a part of the property only, and varying essentially in its terms from the first, without any agency or intervention of the broker, the latter will not be entitled to a commission.” The present case fits exactly this pattern. (6.) There is no evidence that Still-man ever offered these steamers for sale to the government, (c.) If he did, it was at a time when the government would not buy; and refused to entertain any proposition, and to the wrong department. The appropriation for the purchase of steamers was not made until the 17th of July, 1861. (12 Stat. at Large, 267.) (d.) The plaintiff was not in Washington after June; the government then refused even to negotiate with him, and his report of that fact not only authorized the defendant to act for himself, or get another broker, without incurring the penalty of this enormous ten per cent, (e.) The charge of the court on this point was contrary to the law as settled by the authorities above cited.
    II. The complaint avers that the government purchased these vessels from the defendant and that the defendant delivered them to the government; the proof is uncontradi'cted that the purchase was from the New York and Savannah Steamship Company. The seventh request to charge was : “ The sale of the vessels by the New York and Savannah Steamship Company was not a sale by the defendant, and does not entitle the plaintiff to recover the commissions.” This was refused. Either the plaintiff was dealing with the defendant as the known agent of the company when he entered into the contract, and his services were for the company, in which case the defendant is not personally liable, or a sale by the company is not a sale by the defendant.
    III. The court erred in refusing to charge ■ “ That if the plaintiff knew, when this power was executed, that the defendant did not own the ships and could not convey them to a purchaser, that the power was revocable, and that the plaintiff can recover only the value of the services rendered by him before the defendant notified him to cancel it.” (a.) A principal may at any time revoke the authority of the agent, when such authority has not been executed in part, and no injury is worked thereby. (Story on Contracts, § 192. Story’s Agency, 462-5.) (b.) Revocation may be made by «public or formal declaration, by an informal instrument, by a word of mouth, or implied from circumstances. The revocation takes effect, as to the agent, when he receives notice thereof. (Story on Contracts, § 193. Story’s Agency, 4. Morgan v. Stelle, 5 Binn. 305.) (c.) An agent may renounce his authority at any time, and to cease to act is a renunciation.
    IV. The court erred in refusing the third request: “ That under the agreement a sale negotiated by the plaintiff, on terms and at prices to be agreed upon between the plaintiff and the defendant, is a condition precedent to the plaintiff’s right of action.”
    Y. The court erred in charging, that the plaintiff was entitled to recover all or nothing, as at folio 442, or in the written instructions at folio 450, that the jury may “ find any amount less than the ten per cent named in the contract, which they may consider right under the testimony and charge.”
    YI. The judge should have charged as requested that, “ Any contract which conflicts with the morals of the time, and contravenes any established interest of society, is void as being against public policy. If the jury believe that the agreement on which this action is brought was made in reference to the influence of the plaintiff or his friends with the republican members of the administration, or with any persons connected with the administration, whose duty it was to act in the purchase of Steamers, and the per centage, as commissions, were fixed in reference to that influence, that the contract is void, and no action can be sustained on it.” There was some evidence on this subject, and the charge of the court taking the matter from the consideration of the jury, was erroneous. (Story on Contracts, §§ 541 to 548. 13 John 112. Comst. 129. 5 Denio, 534. 4 Comst. 449.10 Barb. 489. Story on Cont. 569, 576, 7.)
    There was evidence that this contract was made with a view through the plaintiff’s political influence, to sell these steamers for an exorbitant price.

      VII. The court should have granted the motion to dismiss the complaint, on the.ground that the action of. the government, in refusing to trade with brokers or third parties in the purchase of vessels, annulled or revoked this power of attorney or contract, and that, therefore, no action can be maintained upon it.

      W. F. Allen, for the respondent.
    I. The action was properly brought against the defendant. He alone was liable upon the contract.
    (1.) The New York and Savannah Navigation Company were not parties to the covenant. The defendant covenanted in his own name, and bound himself personally.
    (2.) It is no defense that the other parties were interested, •and that the services to be rendered by the plaintiff were in their behalf and for their benefit. The defendant had the .right to as he did undertake for them, and to do what they might have been reasonably expected to do.
    (3.) The,defendant had a personal interest as well as agency in the sale of the vessels. • He was in truth the sole actor for the company in the transaction, and did sell and transfer the vessels. Standing in the relation he did, it was not unreasonable that he should enter into this covenant with the plaintiff. But his relation to the company or other owner of the.vessels is not material. The action only concerns his relation to the plaintiff under his contract. (Evans v. Wells & Spring, 22 Wend. 32,5. Williams v. Christie, 10 How. 12. Gill v. Brown, 12 John. 385. Sheffield v. Watson, 3 Caines, 69. Main v. Eagle, 1 E. D. Smith, 619. Russell on Factors and Brokers, 155. Simonds v. Heard, 23 Pick. 125. Tippets v. Walker, 4 Mass. R. 595. See also 5 id. 300; 6 id. 56; 11 id. 54; 10 Cush. 324; 5 id. 210.)
    II. The complaint made a cause of action against the defendant. The contrary is not claimed. It avers the agreement, the action of the plaintiff under it, and the sale of the vessel as the result of his labor and expenses. The averments in the complaint being true, the commissions agreed to be paid were earned.
    III. The only issues of fact made by the pleadings were, 1st. Upon the allegations of the complaint, (a.) That services were rendered and moneys expended by the plaintiff in and about the procuring a purchaser of the vessels. (6.) That the vessels were sold in consequence of the efforts and services of the plaintiff, (c.) That the vessels were sold for $276,500. 2d. Upon the allegations of the answer, (in addition to the allegations that the vessels belonged to the New York and Savannah Navigation Company.) (a.) That before the sale the plaintiff had abandoned all right to sell the vessels, and the defendant had revoked the authority given to him. (6.) That no price or terms for the sale of the vessels were ever agreed upon between the parties to the action, (c.) That the plaintiff reported that he could not1 sell the vessels, and the defendant thereupon employed another agent who sold them.
    IV. Much evidence was given upon the trial touching other services of the plaintiff for-the defendant or the company represented by the defendant, and other causes of action, and in view of a contemplated amendment of the complaint, a.t the close of the trial the plaintiff declined to amend, and the evidence not pertinent to the claim for the sale of the vessels was withdrawn from the consideration of the jury, and'might with propriety have been omitted in making up the case. No material questions of fact arose upon the allegations of new matter in the answer.
    1. The allegation of the abandonment of the right to sell by the plaintiff was not supported by any evidence, and so far as the question could be material, was involved in the affirmative claim of the plaintiff that he had by his services entitléd himself to the commission claimed.
    2. Any revocation by the defendant of the authority of the plaintiff to sell, could not deprive the latter of the commissions already earned, or those to which he might become entitled by a subsequent sale of the vessels of which the plaintiff, by efforts made before the revocation, was the primary cause, whatever* might be the effects as to any subsequent services of the plaintiff. Whatever was done by the plaintiff towards effecting a sale of the vessels, was done before the pretended revocation, and the defendant could not, by any act of his, deprive him of the proper compensation for such services.
    3. The right of the plaintiff to recover for his services, did not depend upon an agreement between the plaintiff and defendant as to the price and terms of sale of the vessels. All that the clause of the agreement referred to imports is, that the terms and conditions of sale were to be fixed by agreement with the purchaser at the time of the sale. The plaintiff was not to delay action or to labor without compensation until such terms should be fixed. Gircumstances might affect the terms and prices, and hence they were not prescribed in the instrument creating the agency. When the sale was accomplished, the price and terms were .agreed upon. (Morgan v. Mason, 4 E. D. Smith, 636. Chilton v. Butler, l id. 150. Murray v. Currie, 7 C. & P. 584.)
    4. The employment of another agent to sell the vessels, did not affect the right of the plaintiff to hig commissions, if he earned them. ■ But the individual to whom the commisssion was paid, was in no sense the broker or agent of the ship owner. He acted in behalf of the government, and his commission was for services rendered the government, and not the ship owner. The fact that the defendant paid the ’commission did not change the relation of the parties.
    Y. The motion for a new trial on the merits was properly denied. The evidence on the part of the plaintiff fully author-. ized the verdict, and ft was for the jury to say whether the evidence was worthy of belief. Upon a conflict of evidence, the jury are the sole judges of the fact, and their verdict is final, unless the evidence so strongly preponderates against their verdict as to be evidence of corruption or passion. Here, upon all the evidence, the plaintiff was entitled to the verdict. The defendant was desirous of effecting a sale of the vessels. He so says in the covenant signed by himself. The reasons are obvious. The rebellion was upon us, and the steamers were withdrawn from their route, and the business of the company was broken up. ,
    The government were about the only purchasers of that kind of property, and had the reputation of paying good prices. The reasons for employing the plaintiff were good and proper reasons. The plaintiff went to Washington on this business, May 25th, and recommended the vessels, and being an engineer, such recommendations were of value. He remained about a week. The plaintiff went with Commodore Foote, Mr. Garvin and Mr. Delano to examine the vessels; and again urged their purchase. This examination was in consequence of the action of the plaintiff.. He saw Mr. Morgan about 15th June, and called his attention to these vessels. He afterwards, and about 27th June, went to Washington again, -with the defendant’s knowledge and assent, an’d on this business solely, and called the attention of the secretary of the navy again to .these vessels. The plaintiff told the defendant that the negotiations would be conducted in New York, and he would probably be called upon for his terms. The plaintiff and defendant •conferred as to the price. The vessels were sold to the government for $277,828. Upon this evidence, uncontradicted and unimpeached, no one can claim that a verdict of the jury, that the plaintiff was the primary cause of the sale ; that he found the purchaser, introduced the matter, brought the parties together, and opened the way to the negotiations that resulted in a sale, could be disturbed. Whatever of contradiction or impeachment there was, with all the evidence, was fairly submitted to the jury.
    The defendant does not disprove or contradict material parts of the testimony of the plaintiff. He gave a different color to the transaction, and differs in unimportant circumstances. The verdict cannot be disturbed, against evidence. The mass of evidence, in which there was more or less conflict, was rendered immaterial by the omission to amend the complaint, and must be considered as out of the case. It should be added that as to all these matters, the weight of the evidence was with the 'plaintiff.

      VI. The material questions arise upon the exceptions. The most important exception is to the rule prescribed for determining the liability of the defendant.
    The charge was in substance that if the plaintiff directed or drew the attention of the navy department, or of Mr. Morgan, to the steamers, as being for sale, and by his action led to negotiations which resulted in the sale, he was entitled to his commission. This charge was right.
    1. The contract between the parties was a brokerage contract. It is so in terms. It was so treated by the parties, and so regarded especially by the defendant.
    2. The services bargained for were to bring about a sale to the government. A particular purchaser was in the mind of the parties. This is apparent from all the evidence, and the influence and exertion of the' plaintiff was the thing bargained for.
    3. It was treated as a brokerage contract by all parties upon the trial, and especially by the defendant in his request to charge. The charge was substantially in the very words of the leading cases upon the subject, and in accordance with the established rules. (Chilton v. Butler, 1 E. D. Smith, 150. Morgan v. Mason, 4 id. 636. Murray v. Currie, 7 C. & P. 584. Wilkinson v. Martin, 8 id. 1. Jewett v. Emson, Ante, p. 165, opinion of Robertson, Chief Justice. Glentworth v. Luther, 21 Barb. 145. 18. id. 160.)
    The charge was substantially in accordance with the request. The facts suggested in the charge would make the plaintiff “ the primary cause of the sale.” It is to be inferred that the judge did charge in the words requested, as there was no refusal so to charge and no exception to any refusal so to charge. (Burnett v. Bouch, 9 Car. & P. 620.)
    VII. The only other exception to the charge \vas to the instruction to the jury, that if they should find that the plaintiff had earned his commission, they might find a verdict for any amount less than agreed to be paid. This was assented to by the plaintiff. As this was more favorable to the defendant than he could ask, it is no cause of complaint or ground for a reversal of the judgment at his instance. He may, if he pleases, . now increase the verdict to any amount that he says is right.
    ■ VIII. The exceptions to the refusal to charge are not well taken.
    1. They are not sufficiently specific. They cannot be grouped together. The counsel should have called the attention of the judge to each request, and excepted to a refusal to charge iaccordance with each request. The judge had a right to know which request it was claimed he had not noticed and disposed of (Jones v. Osgood, 2 Seld. 233. Caldwell v. Murphy, 1 Kern. 416.)
    2. The requests were improper, except as charged by the judge, (a.) The charge was substantially as asked in the first request, (6.) There Was no evidence given of a claim made for services after the pretended revocation of the power. The letter of revocation was dated August 13th, 1861, and repeated August 19. All the vessels had been purchased by the government, and the transfers made before this. The services had been rendered, and the commissions earned, (c.) The defendant did agree to the form and terms of sale, and the plaintiff has not objected. • There was then an agreement between the parties, if this was necessary * but all that this clause in the agreement imported, was that the plaintiff was not agent to sell, with the power to fix the price, (d.) There was no allegation in the answer or evidence upon the trial upon which to found the 4th request. It is not improper to bargain for skill or influence to accomplish any lawful purpose. Corruption is not implied, (e.) The charge was as requested in the 5th proposition. (/.) The 6tli request cannot be sustained. All that a broker ordinarily does is to bring parties together, and whether the parties personally negotiate, for otte reason or another, is not material. The broker does not forfeit his commission by reason of the Caprice or peculiarities of the purchaser-choosing to conclude the purchase in a way of his own devising. (g.) It is enough, in answer to the 7th request, to say that the defendant was anxious to sell the vessels and was willing to pay for the services of the plaintiff in effecting the sale. As between the defendant and the steamship company, the particular interests and liabilities of each do not concern the plaintiff. (Z¿.) If the fact of ownership is not material, a knowledge of the fact cannot affect the plaintiff, (i.) The government has great power and exercises it all, but it cannot direct the rights of partiés under contract for services, or release parties from their legal obligations. •(/.) The notice of revocation was after the sale. It could do no mischief then.
    IX. The several exceptions in the progress of the trial to the exclusion ot admission of evidence were not well taken.
   By the Court,

Robertson, Ch. J.

The request on the trial, on the defendant's part, to charge the jury in this case, that the agreement in controversy was void, if it was made in reference to the influence of the plaintiff or his friends; with members of the administration, or persons connected therewith whose duty it was to act in the purchase of steamers* and the commission fixed in reference • to that influence, was properly refused. No such defense was set up in the answer, and any evidence to that effect, if introduced, would not authorize an amendment to it under the 173d section of. the Code, because the verdict was for the plaintiff. The only evidence approaching such a state of things was the plaintiff’s declaration, before the contract was made, that he knew some members of the administration and had friends who could introduce him to others, and do something, and would have to pay part of the commission to friends vvhom he depended upon “ to assist him in selling” the steamships in question, and his statement, after the attempt by the defendant to revoke his authority, that he had friends," or there were “ persons who were interested in the contract,” jvllo would not consent to give it up; This did not show an understanding that any corrupt or improper influence was to be used. The plaintiff was not then an officer of the United States government. And I am not aware of any principle or authority which prevents a party from using legitimate influence in a proper way to accomplish a result and receiving compensation therefor.

The instrument sued upon was not a mere power ; it was a contract. If the services of this plaintiff rendered in pursuance of it, tended in any way to promote the sale afterwards made, the defendant had no right to terminate the contract by a revocation of the power. The contract was entire, and the defendant could not deprive the plaintiff of full compensation by preventing him from carrying it out. Any request to charge to the contrary was properly refused.

The terms and price of the sale of the vessel was evidently left indefinite in the contract intentionally. It was not a sale of the vessels, but an agreement to compensate at a high rate of commission in order to stimulate the plaintiff to procure the highest price possible. The plaintiff’s rate of compensation or right to any was not to depend on the defendant’s disagreement as to terms, by his refusal of offers, brought about by the ■plaintiff, but on his acceptance of one or more of them. If the sale in question was brought about by the plaintiff’s means, in legal contemplation, both parties agreed in fact to the terms. The third request of the defendant’s counsel to instruct the jury was properly refused.

The defendant, who was president of the company that owned the vessels, arid who finally conducted the negotiations on their part, which led to a sale, was apparently empowered to select agents to dispose of their property, and having employed the plaintiff for the purpose, bound himself individually by a contract under seal to pay the latter the commission in question, whenever a sale should be effected as a consequence of .his exertions. The contract did not contemplate a sale by the defendant of his own property, but a sale of certain vessels by the then owners. It would be rather an extraordinary doctrine that because a. party knew that another was not the owner of property, he was not entitled to paymdnt from him of commissions in case of its sale, for which he became personally responsible. The allegation in the complaint of the party who sold the vessels, if at variance from the fact as proved, may be

amended, to conform to it. The seventh and eighth ¿requests to instruct the jury on the part of the defendant, were therefore properly refused.

No action of the government in dealing directly with the principals, could deprive the broker who brought them together to settle the terms of a purchase, of his commissions, and particularly could not terminate a contract between the principal and his broker. The sixth and ninth requests to instruct the jury, were therefore properly disregarded.

There was sufficient evidence in the case to show active measures taken by the plaintiff in consequence of the contract in question, to bring the steamers in question to the notice of the federal government; and induce it to buy them. He presented them to the notice of its officers; went with a commission to examine them, which he testifies without contradiction was so sent in consequence of his action; called the attention of the newly appointed government agent to them ; ascertained the intended course of the government in regard to the purchase of steamers by direct negotiation with owners, and communicated to the defendant such intended action, and they consulted together as to the terms. There was no request to charge the jury in relation to any abandonment by the plaintiff of the contract as set up in the answer; if it is to be considered as amounting to that. The testimony of the two parties is conflicting upon that point, and it is to be presumed that the jury were satisfied no such abandonment ever took place. The doctrine of the case of Barnard v. Monnot, (34 Barb. 90,) was inapplicable, as in that case the new contract was essentially different from the negotiation which fell through. A principal cannot deprive his broker of his commissions by taking the affair into his own hands and completing a negotiation for a sale, (Morgan v. Mason, 4 E. D. Smith, 636; Chilton v. Butler, 1 id. 150;) much less deprive him of the' benefit of the initiatory steps taken by him, by revoking his authority to complete the transaction. Neither the inability of the principal nor the refusal of the third party to complete the contract will destroy the right to commissions. (Glentworth v. Luther, 21 Barb. 145. Holly v. Gosling, 3 E. D. Smith, 262.) Mere length of time between the. inception and completion of the negotiation, or even interruptions in it do not affect the right, if the final consummation be fairly attributable to the first steps taken by the broker. (Morgan v. Mason, ubi sup.) It is sufficient for a broker, in. order to entitle himself to commissions on a sale, to produce to his principal a purchaser with whom he is satisfied, and with whom he completes the bargain for making which the broker was employed as an agent. (Glentworth v. Luther, ubi sup.) The cases fully justify the charge of the learned judge before, whom the cause was tried, that the main question for the jury to determine was whether the plaintiff’s action in the matter directed or drew the attention of the navy department of the United States, or its agent, to these steamers, as vessels for sale, and led to negotiations that resulted ithe purchase. (Murray v. Currie, 7 C. & P. 584. Wilkinson v. Martin, 8 id. 1. Burnett v. Bouch, 9 id. 620. Jewett v. Empson, ante, p. 165.) He was not bound to charge as requested by the defendant’s counsel in the language of some of the cases, that the plaintiff’s agency was the procuring cause of the sale. The only conditions precedent to a right to recover are, the original discovery of the purchaser and the starting of the negotiations by the broker, and a final closing of the bargain by or on behalf of the principal. The first request to charge was therefore refused.

An exception taken to the refusal to admit a draft of an agreement in evidence was obviated by its subsequent introduction. I am unable to see how the draft of an agreement proposed by the plaintiff to be, but never, in fact, made by the defendant, which was excluded, or, the intention of the plaintiff in i:upsetting” a committee at Washington had any bearing on any question at issue. The fact that the plaintiff had a conversation with a public officer as to the sale of the vessels was pertinent, as showing his efforts. What he said was not admitted. The resolution of the company to sell their steamboats was immaterial, unless it tended to prove a want of authority to transfer the title. It is not in the case to enable us to judge of its materiality. An attempt to prove the usual commissions for selling vessels was properly excluded. The conversation with the government agent was properly admitted to show the'plaintiff’s movements in bringing about a sale. The proof that the plaintiff was on board of one of the vessels when the government officers were also on board, was proven for .the same purpose. These comprise all the exceptions insisted upon.

There being no error in the admission or rejection of testimony, or the charge of the judge in the matters excepted to, the judgment should be affirmed with costs.

         This decision has been recently affirmed in the Court of Appeals.