Plaintiffs were dealers in diamonds, they knew Miers, and that he was engaged in the business of diamond dealer, they had on former occasions entrusted diamonds to him, and he sold them and accounted for the proceeds of the sale without any fault being found on account of any authority to sell.

Upon these facts, and upon the memorandum, the court thought that Miers had the power to take the diamonds, show them to the customer, and if approved of by the customer, sell them to him. It must be borne in mind, however, that that action was not between the owner of the diamonds and the person who obtained them upon memorandum, but between the owner of the diamonds and the purchaser from that person in good faith. That is not this case. This action is between the parties to the contract. It is in writing, and there is nothing vague or equivocal about it; it passed no title to the defendant Payne, and does not import any authority to sell. As between Payne and the plaintiffs it appears from the contract that the diamonds were received for inspection and remained the property of Saunders, Ives & Co. until a correct invoice of those selected was sent to him. How the contract would be construed in a suit between the plaintiffs and a third party who might have purchased the diamonds and paid for them we are not required to consider.

As between the parties to this action the contract is plain. There is no proof in the case that the diamonds were ever sold by the defendant to anyone, and no proof that they ever went out of his possession. Defendants were not witnesses upon the trial, and offered no witnesses except one Nellis (who testified that he was twenty-one years old) to prove the custom of the trade in memorandum goods.

Testimony of this character might be material in an action between plaintiffs and a purchaser of diamonds from the defendant. As this is not such a case, and there is no proof whatever that the diamonds were ever sold by the defendant, it does not seem material here. The judge left the question of the contract to the jury in a very fair charge, and, we think no principle of law has been violated in this branch of the case.

Appellant next urges as error that there is no proof of a sufficient demand upon the defendant. The proof on this subject is that on or about January 5, 1888, Albert Kraus, a member of plaintiffs" firm, went to the house of the defendant Payne with a demand in writing (marked in evidence Ex. D), and was told by his servant that Payne was sick and upstairs; that he handed the written demand to this servant, and the servant went upstairs, and after a while Payne's wife came down stairs having the letter in her hand open. This proof raises a strong presumption that the defendant received the notice, and we think the demand was sufficiently proved. At all events, the jury, on sufficient evidence, have found the fact of the demand and their verdict is conclusive.

Appellant claims error in the charge of the court. The court charged the jury as follows: "A conversion means wrongful taking and keeping; not giving up again after wrongfully taking after demand has been made, but practically, in plain English,

stealing; that is the lay English of it." There can be no doubt that this was an improper charge. But who was prejudiced by it? Most clearly, the plaintiffs; it made it more difficult for them to get a verdict from the jury. And if the plaintiffs had been defeated in the action, and had appealed, a strong ground would be presented for reversing the judgment and awarding a new trial to them. But it seems to us that no mode of reasoning can make it appear that this part of the charge has in any way injured the defendant.

The judgment and order appealed from should be affirmed, with

costs.

BISCHOFF and PRYOR, JJ., concur.

WILLIAM ROCKWELL et al., Resp'ts, v. THOMAS D. HURST, App'lt.

(New York Common Pleas, General Term, Filed February 2, 1891.)

1. BROKERS-WHEN COMMISSION IS EARNED.

The defendant, by an instrument in writing, promised to pay plaintiffs a sum stated if they procured a person who would furnish the necessary money to erect a factory for defendant, "the terms of the transaction to be satisfactory to him." When the defendant discovered what the factory would cost, he withdrew from the transaction upon the ground that the matter would be too expensive. In an action for the brokers' commissions, Held, that plaintiffs were entitled to their commissions, and that as the defendant had, without objection, allowed the question of performance to be submitted to the jury, the latter might award the full amount, although no specific proof of the value of the services was made by plaintiffs. 2. SAME-EVIDENCE-OPINION OF WITNESS.

The defendant asked a witness, his agent, whether the plaintiffs ever brought to the defendant, or to the agent for him, anyone who was willing to make an arrangement in regard to the factory upon satisfactory terms. Held, that the question was improper, as in effect it asked for the opinion of the witness as to whether the contract had been performed.

APPEAL from a judgment of the general term of the city court, affirming a judgment of the trial term, entered upon the verdict of a jury in favor of plaintiffs for $540 and costs, and an order denying a motion for a new trial.

Ira G Darrin, for resp'ts; John E. Parsons, for app'lt.

DALY, Ch. J.-The defendant employed plaintiffs, upon a promised compensation of $500, to procure a party who would furnish the necessary money to erect such a factory as the defendant needed for his business on certain lots of land in Brooklyn; stipulating, however, that the terms of the transaction should be satisfactory to him. The plaintiffs thereupon procured a party who was able and willing to furnish the money for the required purpose, and introduced him to the defendant, with whom and the latter's agent he had some preliminary conferences concerning the cost of of the building, estimates for that purpose being procured from an architect. Before the question of terms was reached, the defendant concluded that the cost of the factory would exceed the figure he had in view, and abandoned further negotiations, notifying the plaintiffs of the fact The plaintiffs

commenced this action to recover the value of the services they had rendered in procuring the party in question, claiming $500 as compensation therefor, alleging the contract of employment as above stated, the procuring of the person to furnish the money, notice to the defendant, the refusal of the latter to accept the money, the expenditure of time and effort by the plaintiffs under such employment, and the value of such services. The defendant answered, alleging a different contract of employment, to wit, in substance that the plaintiff, Pearson, was to procure the necessary money to build the factory, but that his compensation was to be contingent upon the use of said money by defendant for such purposes; that the person procured by plaintiffs to advance moneys was not willing to do so except upon conditions not satisfactory to defendant; and denying the value of plaintiffs' services.

Upon the trial, the allegations of the complaint were fully sustained by the evidence. The agreement of employment of defendant was in writing, and was produced, and it contained no such conditions as defendant set up in his answer, but only required that the terms upon which the money was to be advanced should be satisfactory to defendant. It was shown that there was no practical dispute as to such terms, because the defendant abandoned the idea of building upon discovering that the factory would cost more than he anticipated. The defendant himself swore, "I don't know that Mr. Peters (the party procured by plaintiffs) ever stated to me the terms upon which he would enter into such a contract. The details were undertaken by Mr. Anderson, (defendant's agent); the particulars of the transaction. I did not continue these negotiations, because the price was so much greater than I contemplated in the beginning, or than I could afford. The cost of this building largely exceeded the amount that I had originally considered as the probable cost."

After this unqualified statement of his reasons for abandoning the project, his counsel attempted to draw from him and to make it appear that he was actuated in so doing by a report from Mr. Anderson that Mr. Peters had required ten per cent upon the cost of the building as the profit to himself. Mr. Anderson testified that such a proposition was broached by the plaintiffs on behalf of Peters, and that he was surprised thereat; but he was confronted with his own letter to plaintiffs setting forth a detailed scheme of the proposed building enterprise, whereby a builder advancing the money for the building would receive as profit ten per cent on the cost of construction besides other percentages, making a margin of nearly thirty per cent return for his money the first year, and more afterwards. As defendant swore that Anderson was authorized to arrange terms and details, this piece of evidence shows clearly that it was not any dissatisfaction with the terms proposed by Mr. Peters that caused the defendant to break off the negotiations, but that the true reason was as stated by him, that the projected building would cost more than he anticipated.

The court left it to the jury to say whether the plaintiffs had procured a party ready, willing and able to furnish the necessary

money to erect a factory that was needed by the defendant in his business, on terms that were satisfactory to him; and they found a verdict for the plaintiff for the full amount claimed. No exception was taken by the defendant to leaving the question of performance to the jury; but on the contrary he asked that the court charge that "terms of the offer brought by this party to the defendant must have been shown by the plaintiffs to have been satisfactory before they can recover." The court said: "I have so told them, and that they must show that by a preponderance of evidence." It would have been quite proper for the court to instruct the jury that the plaintiffs did not claim as for a full performance of their contract, but for the value of their services which they had rendered up to the time that the defendant terminated their employment, and for damages for his act in doing so; upon such a charge, the jury might have given him less than the stipulated compensation, but there was no exception to the charge as made, and the defendant did not request that the value of the services rendered should be left to the jury. For this reason we are not called upon to review the correctness of the charge nor anything connected with the submission of the case to the jury; there being no exception in that respect. Our duty as an appellate court is confined to the review of alleged errors when the question is raised by the proper exceptions.

The defendant was content to rest his legal rights upon his exceptions to the denial of his motion to dismiss the complaint, not upon the form in which the case was submitted to the jury. The motions to dismiss were properly denied, for plaintiffs were suing for the value of the services rendered and they were entitled to recover something upon the facts proved. Pursuant to the terms. of their employment, and strictly in conformity therewith, they had procured a party able and willing to furnish the necessary money to enter into negotiations with the latter as to the terms of furnishing such money, and there is nothing to show but that such terms would have been satisfactory to the defendant; on the contrary, it may fairly be inferred from the evidence, that had the latter concluded to go on with the contemplated enterprise, he would have got the money upon his own terms as proposed by his agent Anderson.

The plaintiffs, therefore had substantially performed their contract, but at all events had so far performed as to be entitled to compensation for what they had done. It is true, as claimed by the appellant, that one who employs a broker may terminate the employment at will, while negotiations on the part of the latter remain unsuccessful. Sibbald v. Bethlehem Iron Co., 83 N. Y., 381. That was a case in which the broker, as the court said, "had been unsuccessful. He had not made a bargain, and had failed to bring buyer and seller to an agreement, after having had four months' opportunity, and now his authority was terminated without his having earned commissions." This is not the case before us. Here the plaintiffs had been successful as far as they had been permitted by the defendant to go, and were not given N. Y. STATE REP., VOL. XXXVI.

93

the opportunity to go farther. There might have been something more for them to do. It was their duty to bring the party to the terms prescribed by their employer, and that might have involved more or less negotiation, but it does not lie with the defendant to say that because this was not performed the plaintiffs have not earned their recompense. Perhaps we might go so far as to say that, under the cases, the defendant having made the performance of the condition precedent impossible by his own act, is estopped from denying that the plaintiff had not performed. Gallagher v. Nichols, 60 N. Y., 438; Risley v. Smith, 64 id., 576; 2 Parsons on Con., chap. 1, § 5.

We cannot say that anything remained to be done by plaintiffs to earn their commission. The evidence does not, as we have said, warrant the inference that there would have been any difficulty about terms. For aught that appears, the plaintiffs had substantially performed their whole undertaking. This consideration disposes of the point made on the appeal (but not specifically raised upon the trial), that there is no proof of the value of the services rendered by the plaintiffs, and the jury had the right to find that the services rendered were worth the whole stipulated price, because the contract had been substantially performed.

There remain to be considered only the exceptions to rulings upon the admission and rejection of testimony. None of them were well taken. At fols. 31 and 32, the defendant inquired as to a matter which was settled by his own written contract; at fol. 39, as to an immaterial matter, viz.: whether defendant ever realized any profit or value from plaintiffs' services; at fol. 49, as to a matter which was subsequently answered; at fol. 57, as to communications between defendant and his own agent, which were afterward fully testified to by the agent and were not contradicted, fols. 70 and 71; at fols. 58 and 60, as to his own mental conclusions, which he might well enough have been allowed to give, as it concerned the question whether the proposed terms were satisfactory to him; but as it subsequently appeared that substantially the same terms had been originally proposed on his behalf by his own agent, he could not be permitted to assign them as a cause of dissatisfaction, and if he had it would have contradicted his own testimony as to his reasons for abandoning the negotiations, fol. 56; at fols. 62, 63, 74 and 96, questions were asked concerning the same matter; at fols. 72 and 73, the witness Anderson was asked, in substance, to state a conclusion of fact and to give an opinion as to whether the plaintiff had performed his agreement; at fol. 94. the question objected to had already been put and answered. fol. 73. None of these exceptions requires a reversal.

The judgment and order appealed from should be affirmed, with costs.

BISCHOFF and PRYOR, JJ., concur.