¶1It seems to me that the true construction of the transaction proved in this case is this: The plaintiff, owning certain land, at Saugerties, wished to make it an object to some one to sell it for him, at a high price; and intended to offer a bonus of $500 and as much more as could fairly be realized, to the defendant, if he would take the title, negotiate a sale, and pay a part of the excess, (over $3000,) which he might obtain for the property. I think that is the substance of the written memorandum. It says, a note for $2500 is given; then the defendant is to have the next $500; then the plaintiff is to have the further price obtained, up to $3500; and if any thing more is obtained it goes to the defendant.
¶2The only question then is, upon such a contract, was the *135taker of the title so far the absolute owner of, and sole party in interest in, that land, that he was at liberty to refuse any offer which covered all the conditions on which he received the property P It seems to me that whenever all those conditions were covered, (as they would be by a sale at §3500, or by a bona fide offer from a party able to perform,) the defendant was bound to sell, or to account at once for the §500, balance of the price Lorillard intended to obtain.
¶3The referee has found that such an offer of §3500 cash, from a party who could have paid the cash, was made to the defendant. He does not find' that it was refused; and he does find that it was not renewed. It was not necessary that it should be renewed. One such offer was enough to fix the defendant's liability. And as -the referee does not find that it was accepted, it was necessarily refused.
¶4The judgment entered on the report of the referee should be reversed; and a new trial ordered; costs to abide the event.
¶5Wright, J. concurred.
¶6Hogeboom, J. concurred in the result.
¶7New trial granted.
¶8Wright, Gould and Hogeboom, Justices.]