majority">Hilton, J.

In the fall of 1857, the defendant owned six lots on Forty-seventh street, in this city. The plaintiff’s son, Byron M. Holley, called to inquire their price, and to learn what commissions the defendant would give upon a sale.

The testimony is conflicting as to whether or not B. M. Holley- stated to the defendant that he came on behalf of the plaintiff, but it is quite evident, from the letter of the defendant to B. M. Holley in evidence, that he, and not the plaintiff, was the person with whom the defendant supposed he was dealing. This negotiation was finally ended by B. M. Holley calling upon and informing defendant of the inability of Holley, or the party for whom he had acted, to purchase the lots. The defendant was then justified in supposing that, as the negotiation entered upon by Holley had ceased, all obligations connected with or incident to it were at an end.

Some time after, a Mr. Higgins, another broker, called on the defendant respecting these lots, having been informed of his ownership by Holley, (whether plaintiff, or his son, is not specified.) Higgins says that he distinctly told defendant, when he called, that he came from Holley; and the defendant states directly the contrary. But whether Higgins so stated or not, is quite immaterial, because he and the defendant agree as to what subsequently took place respecting the sale and commissions. Upon Higgins opening the conversation with the defendant respecting the lots, the defendant inquired whether commissions were to be charged him; being answered in the affirmative, he at once declined to sell on the terms proposed. Higgins then left; and, as appears from the testimony of the witness Day, having in the meantime secured his commissions from the purchaser, called the day after on the defendant, and agreed to take the lots and charge no commissions. This agreement was distinctly reiterated at the time the defendant executed and delivered to Higgins the final contract of sale, and in the presence of the subscribing witness Long.

Under these circumstances, it seems difficult to understand upon what principle the defendant can be held liable to the plain*36tiff for commissions on the sale. Long before its negotiation commenced, any contract which existed between the plaintiff and defendant respecting the lots was put an end to, by the mutual understanding of the parties to it; and throughout the interview which terminated in the sale finally made, it was distinctly and expressly agreed, between the defendant and Higgins, that no commissions were to be expected or paid.

The judgment should therefore be reversed.

Daly, First Judge.

I agree with Judge Hiltoh. B. M. Holley testified that Townsend told him that the lots were for sale, and that he would pay a commission of one per cent. Townsend testified that he gave B. M. Holley until Friday to see what he could do, upon which day he called and said he could do nothing with the lots. Upon this point there is no conflict, and it is, I think, decisive of the case. Even if B. M. Holley told Townsend that he came from the plaintiff, this must be construed as an agreement to pay a commission provided a purchaser was procured by the day fixed. On that day, B. M. Holley" called and told Townsend he could do nothing, and the employment was at an end. A sale was afterwards effected through Higgins, who obtained his commission from the purchaser, Townsend having refused to pay him a commission. The plaintiff did not procure the purchaser. He merely informed another broker that the defendant had the lots for sale, and that broker procured the purchaser, and sought to get the defendant to pay him a commis sion for effecting the sale, which the defendant declined. There was no employment existing when the plaintiff informed Higgins that the lots were for sale, and a man is not entitled to a commission from the owner for informing a broker that certain lots are in the market, a purchaser for which is .afterwards procured by the broker. A right to a commission must be founded upon a contract express or implied, and none existed between the defendant and the plaintiff when Higgins procured the purchaser.

The judgment should be reversed.

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