The previous reversal in the Court of Appeals (144 N. Y. 300)-pro-ceeded lipón the distinct ground that the plaintiff had failed to prove, the. agreement as. alleged in the complaint, and that the. agreement, as proved by. one of the"defendants, consisted merely “in the plaintiff’s proposition to him that, if he would purchase up to 4,000 or to 8,000. boxes at thé sale, he w.ould allow him one-eighth of a cent per pound on the former amount, or one-fonrth of a cent on the latter amount-.” It was "held, that there was nothing in such an agreement to require, the defendants personally to bid at the sale. “ It is possible;” said;Judge Gray, “ that the plaintiff may have had the notion,; when.; making-hi's proposition, that the personal attendance of ■ the-defend-, *289ants and their bidding would stimulate other bidders, or otherwise better the market. But if such was the underlying consideration in his mind, there should have been some evidence of it,, and it should not have been left to assumption alone. * *• * How are we to assume that the fact of the defendants’ bidding in person at the sale would be any more potent a factor in the market than if they procured the aid of another person interested with them in their ventures, as Elias was, to bid for them during the sale ? The record is silent. We do not know from the evidence that the defendants occupied any such position in the peculiar market, as to give them any prestige.”
The present record is not silent upon these points. Every suggestion made by Judge Gray has been fully met by the evidence adduced upon the trial now Under review. In the first place, the plaintiff proved the agreement as averred in the complaint. This agreement was in the words and figures following.
“ Renown Auction.
“ Hov. 4dh (if ready).
“ 1-8 c. per lb. allowance on purchases of not less than 4,000 Bx.
“ 1-4 c. per lb. allowance on purchases of not less than 8,000 Bx.
' “ No Brokerage & no allowance on any purchases made through Brokers.
“No lowest price.
“ Full amount of invoice to be paid Brown & Seccomb.
“ The allowance — if any — ,to be paid by me.
“ Condition with allowance Strict Secrecy.
.“O. F. NIXON”.
The plaintiff testified that he exhibited this paper to Hr. McKinney, one of the defendants, who “ took a rough copy of it.” Thus it clearly appears that there was to be no allowance on any purchase" made through brokers. That this meant on any purchase made-through persons apparently bidding as brokers is now entirely-clear. The plaintiff’s object in making the contract was to make the-dates sell well. This appears from the defendants’ own testimony. McKinney testified that the plaintiff came to him and said: “ In .order to malee those dates sell well, I have made arrangements with a number of other houses, and includé you' in that number, in order *290that the leading houses in the trade shall buy a certain quantity of dates and get a certain allowance.” McKinney added that, in offering the allowance to him, the plaintiff did not mean him personally,'but his firm, Zuricalday & Co.; that plaintiff meant to give the allowance upon goods “pw'chased in our name, Zuricalday & Co.” The plaintiff corroborated this by testifying that he made the proposition because McKinney “ was a member of a large jobbing firm* and the fact of his buying would probably enhance the value of the remainder of the dates, which wouldn’t be the case when the purchases were made through a broker, and not direct by the party concerned.” The plaintiff made this same proposition to five of the largest fruit dealers in the city, the defendants and four others. That both parties understood the plaintiff’s object in offering the allowance, is thus perfectly evident. It is also quite evident that they both understood that purchases made apparently through á broker would frustrate this object. To make the dates sell well, to stimulate other bidders, it was essential that these great houses should bid themselves, or' at least that the bidding should be in their names. The effect of bidding by a well-known broker in his own name would probably be quite the reverse. It would naturally tend to a sacrifice of the dates. Be that as it may, the. parties here clearly contracted for whatever advantage might be derived from the defendants’ name, prestige and standing. Their personal interest in the bidding, to be publicly avowed at the sale, was the main consideration for. the allowunce which the plaintiff agreed to make. When that consideration failed, the plaintiff’s agreement founded thereon fell.
It is said that the defendants notified Rawlinson, the auctioneer’s clerk, the day before the sale, that any purchases at the sale would be for them, whether made by Elias or. by McKinney. This was not notice to the plaintiff or to the auctioneers; and there is no proof that Rawlinson conveyed the notice to his principals or to the plaintiff. But, even if he did, the notice did not vary the agreement. The notice was that all dates purchased by Elias at the sale “ would be together with Zuricalday.” The agreement did not forbid Zuricalday entering into any joint adventure with Elias or any one else with respect to these dates. But it limited the .allowance to be paid to Zuricalday & Co. to purchases made by them *291or - in their name. That , is what McKinney says the plaintiff meant. And that is plainly what the agreement meant.- If Elias had publicly announced at the sale that he was bidding for Zuricalday & Go., that might have been within the spirit and intent of the contract. -He was well known as a mere broker and not as a dealer. When he bid without giving any name, no one present could have connected a great house like Zuricalday’s with his purchase. It is true that he subsequently gave up the name of Zuricalday & Go. as the purchasers. But that was not to the public. It was simply to the auctioneers, and was apparently after the sale. There was not the slightest necessity for putting Elias forward in this manner. McKinney was present himself, and bid in nearly 4,000 boxes of dates. He could just as readily have bid in the rest. Why did he not do so, and why was Elias put forward to do it for him, secretly, so far as the public was concerned ? The plaintiff furnishes the probable answer when he tells us that McKinney came to his office half an hour before the sale and asked him to give the same allowance “ off the lowest price; ” that he declined to do so-; and that McKinney said, “ Very well, then, I will work all I can against you.” He seems to have executed his threat when he stood by and, without personal competition, permitted one who was known to the trade as a broker, and who was apparently acting as such, to secure .the major part of those very 8,000 boxes upon the purchase of which the defendants were to have, their allowance. And now the defendants say this was not done through a broker, because the particular broker through whom it was done was secretly interested with them in the transaction. We can hardly think that this claim is made in good faith. It certainly is not within either the letter or the spirit of the contract. ;
As to the point that "the plaintiff could not sue as assignee of the auctioneers, we need only to refer to the case of Minturn v. Main (7 N. Y. 220), where it was expressly held that a public auctioneer who sells goods for another may maintain an action for the price. ■
We have not considered the questions which were raised as to the “secrecy” branch of the contract for the reason that the point first discussed seems to be crucial and conclusive against the right to the allowance claimed. But we have not overlooked the fact that Elias testified to a distinct breach of this provision of the agreement, and *292tHat when he bid at the sale he was quite cognizant of the contení-, plated allowance. ....
No question was raised as to the legality of the cdhtráct-. The plaintiff does not seek to escape flis obligation upon the ground that the agreement was against public policy. Nor do the defendants make any point on that head. Indeed, their only hope of recovering this allowance lay in the legality of the plaintiff’s promise.
The judgment should be reversed, and a new trial ordered, with, costs to the appellant to abide the event.
Rumsbv, Williams and Ingraham, JJ., concurred; O’Brien, J.., dissented.