The three defendants, Sirret, Scheu and Morganstern, on the 9th of September, 1887, entered into a written contract with one Thomas Connaroe, of which the following is a copy:
"For a valuable consideration to us in hand paid, the receipt whereof is hereby acknowledged, we, the undersigned, hereby agree to pay Thomas Connaroe the sum of thirty dollars ($30) per acre on the sale of the tract of land this day conveyed by Mary A. Johnson and Margaretta F. Johnson to *Page 53 us, containing about one hundred and twenty-five (125) acres, whenever a sale of said land shall be effected, or the same shall be taken by legal proceedings, or the exercise of the right of eminent domain. If the same shall be sold or taken in parcels, a proportionate part shall be paid to said Connaroe at the time each parcel is taken or sold as aforesaid. Dated September 9, 1887."
The plaintiff, as the executrix of the will of Connaroe, seeks to recover upon this contract.
The trial court found that an undivided quarter interest of the premises had been sold, and that Connaroe's representative was entitled to recover commissions upon that portion of the land at the contract rate of $30 per acre. The General Term affirmed the judgment.
The premises were conveyed by Mary A. Johnson and Margaretta F. Johnson, at the request of defendants, in the following proportions: To defendant Scheu, one-half; to defendant Sirret, one-quarter; to Martha Millet, one-quarter.
The defendant Scheu held one-quarter of the premises for the defendant Morganstern, and Martha Millet held title for the benefit of one Patrick Millet.
On the 11th of April, 1890, Morganstern parted with his undivided quarter interest, and by his direction Scheu conveyed it to one John L. Williams.
Williams was sworn at the trial, and, after stating in detail the transaction, said:
"In other words, I stepped into Morganstern's shoes and took his interest. As I understood from the parties, I did not pay any additional consideration, except what had already been advanced."
The question presented by this appeal is whether the conveyance by Scheu to Williams of Morganstern's undivided quarter interest was a sale of a parcel of the land within the meaning of the contract.
The courts below have held that it was, but we are unable to adopt this construction.
Connaroe, as a broker or negotiator of the sale, had purchased *Page 54 the premises for the three defendants, and the vendors were to convey as the purchasers should direct.
Sirret and Scheu became seized of an undivided quarter interest each as their own property, and Scheu held another undivided quarter interest for Morganstern.
Scheu testified that Morganstern was not prepared to make the payments on his share, and it was arranged that Scheu should take title, make the payments, and when premises were sold he was to reimburse himself and pay Morganstern his share of the profits.
Scheu advanced over $6,000; times were hard, and, after several years of waiting, he induced Morganstern to find some one to take his interest. In pursuance of this suggestion Morganstern produced Williams, who paid Scheu his advances, but no new consideration, and received the conveyance of Morganstern's undivided quarter interest.
The original transaction, resulting in the contract, was evidently a speculation in which the defendants became the owners of one hundred and twenty-five acres of land, and the broker, or negotiator, postponed the payment of his commissions until the premises were sold, or some parcel thereof, or the same should be taken by legal proceedings or the exercise of the right of eminent domain.
Counsel agree that defendants are jointly liable under this contract, and it is apparent that the intention of the parties was to pay the broker his commissions when the premises were sold, or any part thereof.
The contract contemplates a joint conveyance of a part or the whole of the land and a joint payment of commissions.
It is not reasonable to assume, in the absence of any express provision to that effect, that the defendants Sirret and Scheu agreed to pay the broker his commissions on the transfer of Morganstern's undivided quarter for his own convenience and benefit and in which they had no interest whatever.
It is the plain meaning of the contract that when these joint purchasers made a joint sale of any portion or the whole of the premises they were to pay commissions. *Page 55
It is urged that there has been a sale of an undivided quarter interest, and that the broker is deprived of his commissions on that transaction. The answer to this suggestion is that the contract did not provide for this contingency.
It was evidently supposed that the joint purchasers would sell the land as a whole or in parcels, and the broker was to be paid at the time of the sale or sales. The transfer of undivided interests among themselves, or to third parties, was not considered.
The defendant Morganstern was unable financially to carry his undivided interest, and he induced Williams to take his place in the venture.
We regard this as a transaction neither within the letter nor the spirit of the contract, and are of opinion that the judgment appealed from must be reversed and a new trial ordered, with costs to abide event.