Brady, J.
I think the testimony shows that, although the plaintiff was employed to. sell, and introduced the buyer, the purchase was abandoned, and subsequently induced by dent-worth. I do not consider this a case of conflict of evidence, but a clear misapprehension or plain mistake on the part of the jus[109]*109tice. If the evidence established the facts that the plaintiff introduced the buyer, and that the buyer so introduced, without any intervening agency, made the purchase, it would be otherwise, even though a period should have elapsed between the introduction and the purchase, and the negotiations for a time should not have resulted in a sale. Here, as already suggested, the buyer abandoned the contemplated purchase, but finally completed it through the instrumentality of Glentworth. There is no evidence to show that, after the interviews between the defendant and the purchaser, consequent upon the introduction of the latter, but which resulted in nothing, the plaintiff ever did anything towards the sale or a renewal of the negotiations. Indeed, it appears that he did not know that the sale had eventually been made to the person introduced by him, until it was consummated. The case, therefore, on the part of the plaintiff, is a mere introduction of a person desirous to buy, but unwilling to comply with the terms of sale, and declining to purchase for that reason. Although the buyer was introduced by the plaintiff, the sale to him was effected by Glentworth. I think the judgment ,should be reversed.
Daly, First Judge.
There was no conflicting testimony in this case. That is, there was no contradiction as to the material facts, for Ludlow’s impressions, or what he supposed, could not alter or affect the facts positively sworn to by the witnesses Car-man, Fellows, and Glentworth, and the most material facts consisted of what occurred in the presence of Ludlow—such as the declaration of Fellows that he had given the matter up, and Ludlow’s statement to Carman that there was no use of any further negotiations with Fellows, which Ludlow did not deny, or attempt to qualify or question.
The facts, as they stand uncontradicted upon the evidence, are as follows: The defendant Carman had employed Glentworth to sell the house, and Glentworth’s cards or bills, directing inquiries to be made of him, had been on the house for three or four months. "While Glentworth’s bills were up, the carpenter of Fellows called upon him, Glentworth knowing that he represented Fellows, and [110]*110obtained a list of houses which Grlentworth had for sale, among which was the house in question; and it was from his carpenter that Fellows first learned that the house was in the market. Carman called upon Ludlow to get him to sell the house, but Ludlow refused to act while Grlentworth’s bills were on it, and Carman agreed to put up a bill directing inquiries to be made of himself, which was done with the understanding that Ludlow might offer the property for sale as well as any other broker, Carman declaring that' he would give a commission to whoever sold it. Fellows, having learned from his carpenter that the house was for sale, obtained Carman’s address from the bill on it, and called at Carman’s office. He saw Carman, learned from him the price, and Carman went and showed him the house; but nothing resulted- from the interview. This took place before Ludlow applied to Fellows as the agent or broker of Carman. Ludlow then sent for Fellows, and an interview took place between him and Carman at Ludlow’s office. Ludlow testifies that he introduced them, and that he supposed, from the way in which they acted, that they were strangers. Fellows, however, testifies that he mentioned to Ludlow that he had seen Mr. Carman’s house, and that Ludlow then told him that he had the selling of it. Here, then, is perhaps some conflict, but if there is, it is not material, as Ludlow’s testimony, giving it its full scope and extent, is merely as to his impressions, which could not be received to contradict a fact positively sworn to by both Carman and Fel lows; indeed, as mere matter of impression, it was no evidence at all, for he did not state how they acted, or what they said, to give him such an impression. Two interviews occurred between Fellows and Carman at Ludlow’s office, but they could not come to terms. Carman’s price was $30,000. Fellows wanted cer tain repairs made. Carman considered that they would cost five or six hundred dollars, as he told Ludlow, and offered to throw off $500, which was communicated by Ludlow to Fellows, but Fellows considered the reduction too trifling, and would not buy except at $30,000, Carman agreeing to make the repairs. At this point of difference the parties stood. Ludlow tried to persuade [111]*111Follows to buy at Carman’s offer, telling Mm that the property was cheap, but did not succeed in inducing him, and Carman would not sell upon Fellows’ terms. Fellows then, as he testifies, abandoned all hope of making the purchase. At the last interview between him and Carman at Ludlow’s office, he told Car-man and Ludlow that he had given the matter up, and was going to look elsewhere; and Ludlow told Carman that there was no use of any further negotiations with Fellows; and so the matter ended as respects Ludlow’s efforts or attempts to bring about a sale. If the parties—that is, Carman and Fellows—had come together again of their own motion, and perfected the sale, there would have been some color or ground for holding that Ludlow would have been entitled to a commission. But they did not. They were brought together again by another broker, Glentworth. While Ludlow was trying to negotiate the sale, Fellows was repeatedly at the office of Glentworth respecting the purchase of the house, or of others, or for the renting of a furnished house. After the last interview between Carman and Fellows at Ludlow’s office, Glentworth met Carman and brought him to his, Glentworth’s, office, where he met Fellows, and negotiations w'ere resumed for the purchase. This negotiation was carried on by Glentworth, and, after two interviews at Glentworth’s office, the parties came to terms, the bargain was made, and the contract for the purchase was drawn up and executed in the office of Glentworth.
The question for the justice, upon this uncontradicted state "of facts, was, who effected the sale, or earned the commission, Glentworth or Ludlow ? They could not both earn it, for, although Carman employed them both, and had a right to employ as many brokers as he thought fit, he had agreed or promised to pay a commission only to the one who effected the sale., This question upon the evidence was a very plain one, and admitted, in my judgment, of but one conclusion. Neither Glentworth nor Ludlow were directly instrumental in bringing Carman and Fellows together on the first interview, but their first meeting was brought about indirectly through information obtained by the carpenter [112]*112of Fellows at the office of Grlentworth. That interview ended in nothing. Carman and Fellows were then brought together by Ludlow, and several interviews took place at his office, which also ended in nothing. After which they were brought together again by Grlentworth, and through him the sale was effected. That is, the sale was the consequence of his action. It is true that, while the matter was in the hands of Ludlow, Fellows offered to buy upon the same terms that Carman subsequently sold; but Carman then declined to accept it, and the matter was given up by Fejlews, Ludlow himself declaring that there was no further use in negotiating with him.
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Brady, J.
I think the testimony shows that, although the plaintiff was employed to. sell, and introduced the buyer, the purchase was abandoned, and subsequently induced by dent-worth. I do not consider this a case of conflict of evidence, but a clear misapprehension or plain mistake on the part of the jus[109]*109tice. If the evidence established the facts that the plaintiff introduced the buyer, and that the buyer so introduced, without any intervening agency, made the purchase, it would be otherwise, even though a period should have elapsed between the introduction and the purchase, and the negotiations for a time should not have resulted in a sale. Here, as already suggested, the buyer abandoned the contemplated purchase, but finally completed it through the instrumentality of Glentworth. There is no evidence to show that, after the interviews between the defendant and the purchaser, consequent upon the introduction of the latter, but which resulted in nothing, the plaintiff ever did anything towards the sale or a renewal of the negotiations. Indeed, it appears that he did not know that the sale had eventually been made to the person introduced by him, until it was consummated. The case, therefore, on the part of the plaintiff, is a mere introduction of a person desirous to buy, but unwilling to comply with the terms of sale, and declining to purchase for that reason. Although the buyer was introduced by the plaintiff, the sale to him was effected by Glentworth. I think the judgment ,should be reversed.
Daly, First Judge.
There was no conflicting testimony in this case. That is, there was no contradiction as to the material facts, for Ludlow’s impressions, or what he supposed, could not alter or affect the facts positively sworn to by the witnesses Car-man, Fellows, and Glentworth, and the most material facts consisted of what occurred in the presence of Ludlow—such as the declaration of Fellows that he had given the matter up, and Ludlow’s statement to Carman that there was no use of any further negotiations with Fellows, which Ludlow did not deny, or attempt to qualify or question.
The facts, as they stand uncontradicted upon the evidence, are as follows: The defendant Carman had employed Glentworth to sell the house, and Glentworth’s cards or bills, directing inquiries to be made of him, had been on the house for three or four months. "While Glentworth’s bills were up, the carpenter of Fellows called upon him, Glentworth knowing that he represented Fellows, and [110]*110obtained a list of houses which Grlentworth had for sale, among which was the house in question; and it was from his carpenter that Fellows first learned that the house was in the market. Carman called upon Ludlow to get him to sell the house, but Ludlow refused to act while Grlentworth’s bills were on it, and Carman agreed to put up a bill directing inquiries to be made of himself, which was done with the understanding that Ludlow might offer the property for sale as well as any other broker, Carman declaring that' he would give a commission to whoever sold it. Fellows, having learned from his carpenter that the house was for sale, obtained Carman’s address from the bill on it, and called at Carman’s office. He saw Carman, learned from him the price, and Carman went and showed him the house; but nothing resulted- from the interview. This took place before Ludlow applied to Fellows as the agent or broker of Carman. Ludlow then sent for Fellows, and an interview took place between him and Carman at Ludlow’s office. Ludlow testifies that he introduced them, and that he supposed, from the way in which they acted, that they were strangers. Fellows, however, testifies that he mentioned to Ludlow that he had seen Mr. Carman’s house, and that Ludlow then told him that he had the selling of it. Here, then, is perhaps some conflict, but if there is, it is not material, as Ludlow’s testimony, giving it its full scope and extent, is merely as to his impressions, which could not be received to contradict a fact positively sworn to by both Carman and Fel lows; indeed, as mere matter of impression, it was no evidence at all, for he did not state how they acted, or what they said, to give him such an impression. Two interviews occurred between Fellows and Carman at Ludlow’s office, but they could not come to terms. Carman’s price was $30,000. Fellows wanted cer tain repairs made. Carman considered that they would cost five or six hundred dollars, as he told Ludlow, and offered to throw off $500, which was communicated by Ludlow to Fellows, but Fellows considered the reduction too trifling, and would not buy except at $30,000, Carman agreeing to make the repairs. At this point of difference the parties stood. Ludlow tried to persuade [111]*111Follows to buy at Carman’s offer, telling Mm that the property was cheap, but did not succeed in inducing him, and Carman would not sell upon Fellows’ terms. Fellows then, as he testifies, abandoned all hope of making the purchase. At the last interview between him and Carman at Ludlow’s office, he told Car-man and Ludlow that he had given the matter up, and was going to look elsewhere; and Ludlow told Carman that there was no use of any further negotiations with Fellows; and so the matter ended as respects Ludlow’s efforts or attempts to bring about a sale. If the parties—that is, Carman and Fellows—had come together again of their own motion, and perfected the sale, there would have been some color or ground for holding that Ludlow would have been entitled to a commission. But they did not. They were brought together again by another broker, Glentworth. While Ludlow was trying to negotiate the sale, Fellows was repeatedly at the office of Glentworth respecting the purchase of the house, or of others, or for the renting of a furnished house. After the last interview between Carman and Fellows at Ludlow’s office, Glentworth met Carman and brought him to his, Glentworth’s, office, where he met Fellows, and negotiations w'ere resumed for the purchase. This negotiation was carried on by Glentworth, and, after two interviews at Glentworth’s office, the parties came to terms, the bargain was made, and the contract for the purchase was drawn up and executed in the office of Glentworth.
The question for the justice, upon this uncontradicted state "of facts, was, who effected the sale, or earned the commission, Glentworth or Ludlow ? They could not both earn it, for, although Carman employed them both, and had a right to employ as many brokers as he thought fit, he had agreed or promised to pay a commission only to the one who effected the sale., This question upon the evidence was a very plain one, and admitted, in my judgment, of but one conclusion. Neither Glentworth nor Ludlow were directly instrumental in bringing Carman and Fellows together on the first interview, but their first meeting was brought about indirectly through information obtained by the carpenter [112]*112of Fellows at the office of Grlentworth. That interview ended in nothing. Carman and Fellows were then brought together by Ludlow, and several interviews took place at his office, which also ended in nothing. After which they were brought together again by Grlentworth, and through him the sale was effected. That is, the sale was the consequence of his action. It is true that, while the matter was in the hands of Ludlow, Fellows offered to buy upon the same terms that Carman subsequently sold; but Carman then declined to accept it, and the matter was given up by Fejlews, Ludlow himself declaring that there was no further use in negotiating with him. Ludlow did all that he could to persuade Fellows to accede to Carman’s terms, but without effect; and the matter,'so far as Ludlow’s instrumentality and efforts intervened, was abandoned and given up. Ludlow swore that he considered that the matter was still in his hands, but what he considered is not to be received against the open evidence of his. acts—his positive declaration that there was no use in negotiating further with Fellows. While Ludlow was negotiating between the parties, neither Carman nor Fellows attempted to take the matter out of his hands. Fellows considered that he was the person to treat with, and Ludlow did what he could do, but without success. Carman had not employed him exclusively, and Grlentworth had a right to take the matter up, and bring the parties to an understanding if he could. All that we have ever said in these cases is that, if the broker finds the purchaser, and puts him in communication with the seller, and the parties think proper to take the matter out of the broker’s hands and carry on the negotiations themselves, the broker earns his commission if a sale is afterwards effected. Here, Ludlow cannot be said to have found the purchaser. He merely brought parties together who bad been already together. If, after doing this, he had effected a sale; or if they had taken the matter out of his hands and agreed upon the terms of sale, he would, perhaps, have earned his commission. But nothing of the kind took place. He brought them together, and failed to accomplish anything. Another broker did precisely what he had done, and succeeded in [113]*113effecting what Ludlow had not been able to bring about. I think the true mode of viewing the case is, as suggested by Judge Beady, that the negotiation instituted by Ludlow was abandoned and given up by all the parties to it. That a new negotiation was then set on foot by Grlentworth, and, though it resulted in a sale upon precisely the same terms as had been offered by Fellows in the negotiation with Ludlow, that it was nevertheless a distinct and independent transaction, not proceeding or growing out of the previous one, so as to constitute Ludlow the party through whose instrumentality the sale was effected. Carman had employed Grlentworth previous to the negotiation with Ludlow. That employment still continued, and Carman was justified in regarding Glentworth as the party through whose action the sale was finally brought about. He has paid Glentworth a« commission of $300, and to sustain this judgment would be to compel him to pay another commission, which would involve, holding either that he owed Glentworth nothing for his final services in the matter, or was bound to pay a commission to each broker, a conclusion, I think, unwarranted by the evidence, and which, in my judgment, would be most unjust. I therefore agree; with Judge Beady that the judgment should be reversed.