Ingraham, J.:
The agreement as, alleged in the complaint was that two steamboats, the j>roperty of the defendant, should be placed in plaintiff’s hands to sell for defendant, and that-if the plaintiff was- successful in finding a purchaser willing-and able to buy the said steamboats the-plaintiff was to look for his commission from said purchaser and not from the defendant; “ provided, however, that if the defendant, The Washington Steamboat Company, -Limited," effected any sale of the said properties with a purchaser procured by plaintiff, except through and by the consent of the plaintiff, then and .in that case ‘ the defendant, The Washington Steamboat Company, Limited, was to become liable to the plaintiff for such commission as the plaintiff would have become entitled to, from the prospective purchaser, to wit, the sum of Five thousand dollars ($5,000).” The complaint further alleges that the plaintiff found a purchaser willing and able to buy certain properties of the defendant and submitted to' the ■ defendant a proposition of purchase from said purchaser, the terms of which the defendant agreed to; that there was a memorandum [820]*820in writing of the sale of these Steamboats signed by the purchaser, procured by' the plaintiff, and by the plaintiff on behalf of the defendant, the plaintiff at the same time procuring from the purchaser an agreement that after the transfer of title of the property by the defendant to the purchaser, the purchaser would- pay the plaintiff the sum of $5,000; that subsequently the defendant entered into an agreement with the prospective purchaser procured by the plaintiff, under which the defendant sold to such purchaser these two steamboats, and that the defendant by such acts violated its contract with and damaged the plaintiff to the extent of $5,000, and the complaint demands judgment against the defendant for that sum.
Upon the trial the plaintiff testified. that he received an -offer. from one Randall, who lived in Washington,, to buy the two steamboats -belonging to the defendant named the Wakefield and Arrow-smith/ that this purchaser offered the plaintiff $45,000 for these two boats, which sum included the plaintiff’s commission. The plaintiff then offered in evidence a written agreement dated March 4,1901,^signed by Randall, the purchaser, and the plaintiff, which provided that plaintiff had sold to Randall the river steamboats Wake-field and Arrowsmith for $40,000, in four equal annual payments of $10,000 each on the first Monday óf October in the years 1901, 1902, 1903 and 1904; and another agreement dated.the same day whereby in consideration of the sale to Randall of these steamboats Randall agreed to pay to the plaintiff in cash the sum of $5,000' at the time of the payment of the first installment of the purchase price of said steamboats. The plaintiff also introduced in evidence a letter from one. Faulhaber, who was secretary to Henry Hart, president of the defendant, which was as follows:
“ Dear Sir.— Confirming your understanding "with me, Mr. Hart directs me to say, if you are -successful in completing the sale of the. Washington Steamboat Company, Limited, property, you are .to , receive no commissions from us, but must look for same from the buyers of the property.
“ Please • confirm this arrangement so that no understanding will occur later.”
In reply to this letter plaintiff wrote to Faulhaber a letter dated, the same day, as follows: '
[821]*821“Deab Sib.— I have your favor of the 20th inst. and confirm our agreement as therein stated, with the understanding, of course, that you are not to close the sale with my purchasers except through me, in which case, as I have personally informed you, my commission is to be paid by the purchasers, and I am to receive no commission from Mr. Hart.”
Accepting these letters, which stated in substance the verbal agreement as testified to by plriintiff, as constituting the agreement between the plaintiff and the defendant, the plaintiff was authorized to sell the defendant’s property, which, it would seem, included these two steamboats, certain ferry franchises and wharf property in the cities of Washington, D. C., arid Alexandria, Va., and also two other steam ferryboats. The plaintiff was to receive no commission' from the defendant upon condition that the defendant was not to close the sale with the purchasers procured by the plaintiff except through the plaintiff. It further appeared that after the plaintiff had procured this purchaser, other agents of the defendant finally consummated a sale of the steamboats to the purchaser with whom the plaintiff has made the contract, upon more advantageous terms to the defendant as to payments, but for the same amount of $40,000 that the purchaser was to pay for, the boats under the contract with the plaintiff. Assuming that this was a failure to comply with the conditions under which the plaintiff agreed to look to the purchasers for his commission, the result of such a violation of the conditions that would follow would be that the plaintiff would be entitled to recover his commission from the defendant, based Upon a quantum meruit. The fact that the plaintiff and the purchaser had agreed as to the amount of the commission would not entitle the plaintiff as a matter of law to the amount that he was to receive from the purchaser in case the sale had been carried through upon the terms proposed by the plaintiff.
At the end of the trial the court submitted the question to the jury, the court instructing the jury that they were to determine whether or not there was a contract between the plaintiff and the defendant; then were to determine whether there was a breach of such conti'act by the defendant that-imposed any liability upon it, and whether the plaintiff performed the obligations of his contract; rind then, if the jury found these questions in favor of the plaintiff, [822]*822they were to determiné whether ór not there was any interference' ' by Hart, the defendant’s -president, which defeated plaintiff’s recov- ‘ ■eryof his commission from his principal,'the purchaser. There was no ■-express instruction to the jury as to the -amount to which the plaintiff was entitled,, nor did the court leave it to the jury to. determine the amount of the recovery in the event that they found the plaintiff entitled, to "a verdict. The jury then retired, anda sealed verdict was ordered to be returned on the next morning.
On the following morning the jury handed in the sealed verdict, which was simply a verdict for the plaintiff. ' ¡NV amount being named, the court stated, .“You-find a verdict for the plaintiff for 'the' full- amount of $5,000,” to which the forémaií answered, “$5,000.” The tenth juror then stated that “no amount-was agreed upon.” The court then stated to the jury, “You have no. amount returned,” and the fourth juror stated that “there was no amount mentionedthereupon the court stated to the counsel that the case would have to go back on the calendar, as the jury had separated. Whén. defendant’s counsel asked- if the court would grant a motion for a new trial, the court said: “ There is no new trial about it. This is a mistrial.” . The jury were then discharged.
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Ingraham, J.:
The agreement as, alleged in the complaint was that two steamboats, the j>roperty of the defendant, should be placed in plaintiff’s hands to sell for defendant, and that-if the plaintiff was- successful in finding a purchaser willing-and able to buy the said steamboats the-plaintiff was to look for his commission from said purchaser and not from the defendant; “ provided, however, that if the defendant, The Washington Steamboat Company, -Limited," effected any sale of the said properties with a purchaser procured by plaintiff, except through and by the consent of the plaintiff, then and .in that case ‘ the defendant, The Washington Steamboat Company, Limited, was to become liable to the plaintiff for such commission as the plaintiff would have become entitled to, from the prospective purchaser, to wit, the sum of Five thousand dollars ($5,000).” The complaint further alleges that the plaintiff found a purchaser willing and able to buy certain properties of the defendant and submitted to' the ■ defendant a proposition of purchase from said purchaser, the terms of which the defendant agreed to; that there was a memorandum [820]*820in writing of the sale of these Steamboats signed by the purchaser, procured by' the plaintiff, and by the plaintiff on behalf of the defendant, the plaintiff at the same time procuring from the purchaser an agreement that after the transfer of title of the property by the defendant to the purchaser, the purchaser would- pay the plaintiff the sum of $5,000; that subsequently the defendant entered into an agreement with the prospective purchaser procured by the plaintiff, under which the defendant sold to such purchaser these two steamboats, and that the defendant by such acts violated its contract with and damaged the plaintiff to the extent of $5,000, and the complaint demands judgment against the defendant for that sum.
Upon the trial the plaintiff testified. that he received an -offer. from one Randall, who lived in Washington,, to buy the two steamboats -belonging to the defendant named the Wakefield and Arrow-smith/ that this purchaser offered the plaintiff $45,000 for these two boats, which sum included the plaintiff’s commission. The plaintiff then offered in evidence a written agreement dated March 4,1901,^signed by Randall, the purchaser, and the plaintiff, which provided that plaintiff had sold to Randall the river steamboats Wake-field and Arrowsmith for $40,000, in four equal annual payments of $10,000 each on the first Monday óf October in the years 1901, 1902, 1903 and 1904; and another agreement dated.the same day whereby in consideration of the sale to Randall of these steamboats Randall agreed to pay to the plaintiff in cash the sum of $5,000' at the time of the payment of the first installment of the purchase price of said steamboats. The plaintiff also introduced in evidence a letter from one. Faulhaber, who was secretary to Henry Hart, president of the defendant, which was as follows:
“ Dear Sir.— Confirming your understanding "with me, Mr. Hart directs me to say, if you are -successful in completing the sale of the. Washington Steamboat Company, Limited, property, you are .to , receive no commissions from us, but must look for same from the buyers of the property.
“ Please • confirm this arrangement so that no understanding will occur later.”
In reply to this letter plaintiff wrote to Faulhaber a letter dated, the same day, as follows: '
[821]*821“Deab Sib.— I have your favor of the 20th inst. and confirm our agreement as therein stated, with the understanding, of course, that you are not to close the sale with my purchasers except through me, in which case, as I have personally informed you, my commission is to be paid by the purchasers, and I am to receive no commission from Mr. Hart.”
Accepting these letters, which stated in substance the verbal agreement as testified to by plriintiff, as constituting the agreement between the plaintiff and the defendant, the plaintiff was authorized to sell the defendant’s property, which, it would seem, included these two steamboats, certain ferry franchises and wharf property in the cities of Washington, D. C., arid Alexandria, Va., and also two other steam ferryboats. The plaintiff was to receive no commission' from the defendant upon condition that the defendant was not to close the sale with the purchasers procured by the plaintiff except through the plaintiff. It further appeared that after the plaintiff had procured this purchaser, other agents of the defendant finally consummated a sale of the steamboats to the purchaser with whom the plaintiff has made the contract, upon more advantageous terms to the defendant as to payments, but for the same amount of $40,000 that the purchaser was to pay for, the boats under the contract with the plaintiff. Assuming that this was a failure to comply with the conditions under which the plaintiff agreed to look to the purchasers for his commission, the result of such a violation of the conditions that would follow would be that the plaintiff would be entitled to recover his commission from the defendant, based Upon a quantum meruit. The fact that the plaintiff and the purchaser had agreed as to the amount of the commission would not entitle the plaintiff as a matter of law to the amount that he was to receive from the purchaser in case the sale had been carried through upon the terms proposed by the plaintiff.
At the end of the trial the court submitted the question to the jury, the court instructing the jury that they were to determine whether or not there was a contract between the plaintiff and the defendant; then were to determine whether there was a breach of such conti'act by the defendant that-imposed any liability upon it, and whether the plaintiff performed the obligations of his contract; rind then, if the jury found these questions in favor of the plaintiff, [822]*822they were to determiné whether ór not there was any interference' ' by Hart, the defendant’s -president, which defeated plaintiff’s recov- ‘ ■eryof his commission from his principal,'the purchaser. There was no ■-express instruction to the jury as to the -amount to which the plaintiff was entitled,, nor did the court leave it to the jury to. determine the amount of the recovery in the event that they found the plaintiff entitled, to "a verdict. The jury then retired, anda sealed verdict was ordered to be returned on the next morning.
On the following morning the jury handed in the sealed verdict, which was simply a verdict for the plaintiff. ' ¡NV amount being named, the court stated, .“You-find a verdict for the plaintiff for 'the' full- amount of $5,000,” to which the forémaií answered, “$5,000.” The tenth juror then stated that “no amount-was agreed upon.” The court then stated to the jury, “You have no. amount returned,” and the fourth juror stated that “there was no amount mentionedthereupon the court stated to the counsel that the case would have to go back on the calendar, as the jury had separated. Whén. defendant’s counsel asked- if the court would grant a motion for a new trial, the court said: “ There is no new trial about it. This is a mistrial.” . The jury were then discharged. Subsequently, at the same term, Upon motion by the plaintiff, the court, by order, corrected the verdict by inserting the words and figures: “Five thousand ($5,000) dollars, with One thousand six hundred and ¡sixty-five ($-1*665) dollars interest, -amounting to a total -of Six thousand six hundred arid sixty-five ($6,665) dollars,” and directing the clerk to enter judgment in conformity with such sealed verdict as corrected; whereupon judgment was, entered for ■this sum, and the defendant appeals from the judgment, and. also from the order correcting the verdict.
, We think the. court was. without power ■ to correct the verdict, This is not a case in'which the damages were liquidated so that the' plaintiff, if entitled to recover at all, was entitled to a liquidated amount. The court undoubtedly, when the verdict was presented in which no amount was stated, could. have sent the-jury back to determine the amount to which the plaintiff was entitled, but having failed to' do that, and having discharged'the jury, two jurors having -stated that no amount as to the verdict in favor of the plaintiff had been agreed upon by the jury, the amount of the verdict-[823]*823was never fixed by the jury, but it was the court that determined the amount of the plaintiff’s recovery, and not the jury. In this case we think the damage, if any, was unliquidated, and what plaintiff was entitled to recover was the value of his services, and not the amount that he would have received from the purchaser had the defendant carried through the contract with the purchaser that he had made under his employment by the defendant. The amount of the plaintiff’s damages being thus unliquidated, it was manifestly improper for the court to assume the function of the jury, and,, on motion, determine the amount of the verdict. An entirely different question is presented where the damages are. liquidated,-and where the plaintiff, if entitled to recover at all, is entitled as matter of law to recover a fixed amount; but where the damages are unliquidated, and the question as to the amount of the recovery is a question for the jury, as we think it was in this case, the jury must determine the amount of the verdict, and not the court. In this case, if plaintiff was entitled to recover, he was entitled'to a verdict as if there had been .no provision' in the contract as to the payment of the •plaintiff’s commission by the purchaser as the condition-upon which the defendant was .to be relieved from the payment of -the plaintiff’s commission was not complied with by the defendant. But the-amount of the recovery was the value of ’ the plaintiffs services and that amount should have been determined by the jury. ■
It follows that the order correcting the verdict must be reversed and the judgment entered upon the verdict as corrected must also be reversed, with costs to the. appellant to abide the event.
Clarke and Houghton, JJ., concurred; Patterson, P. J., concurred in result; Lambert, J., dissented.