(dissenting):
I- think this judgment should be affirmed. To entitle the plaintiff to recover,! it is not sufficient 'that-he should show a provisional agreement which-lias failed because of a condition not dependent upon the action of the vendor, but a binding and enforcible contract *294for the sale and conveyance of the land must be proved. (Condict v. Cowdrey, 139 N. Y. 273.) The alleged agreement upon which • the plaintiff relies is set out in the record.. It contains a provision that if “ for any reason the party of the second'part declines to take title to said property at the maturity of this contract, the party of the first part shall pay expense for examining title, and this - contract shall be abrogated, and neither party shall claim any other > damages against the other on account of such refusal, and the twenty-five hundred dollars paid by the party of the second part, shall be refunded to him without deduction.”
The words of that provision are broad enough to permit the pur.chaser to refuse to take the property if lie desires, and to make his desire a sufficient reason The actions of the parties to the transaction show clearly that that was their understanding of its meaning, because, while it appears that the party of the second part went to the office of the attorneys on the day fixed for the completion of the-contract with the money to make the cash payment, he changed his mind about the advisability of it, and declined to complete the contract, and that his declination was acquiesced in and the contract abrogated; and no legal reason appears, or was given, or was suggested to exist, why that was done. There was no pretense of proving that the title was invalid, but the refusal of the proposed purchaser to carry oiit the contract was acquiesced in without - objection. > '
If. contracts are to De construed according to the intention of the parties, I cannot conceive of more cogent evidence as to what was-. ■ the intention of the parties in regard to this contract than that- shown by their acts in thus abrogating it. It must be remembered that there is no question 'of estoppel in the case.- How this contract -came to be made is a matter of no importance. It was presumably the contract which the purchaser desired, and it was the arrangement that was-made between the parties. No representations were made-to the plaintiff which would, estop the defendant from insisting that the paper was precisely what the actions of the parties showed' it to be; and the only question presented is, whether the plaintiff, bore the burden which the law puts upon him of showing that-by-his means an enforcible contract of sale had been entered into. It may be that the arrangement was a foolish one. It may be that, because *295of a lack of consideration, it was no contract at all. But if it was no contract at all, the plaintiff is in no better case, because, unless there was a contract, he cannot recover commissions. The result of the whole paper was that there was a conditional arrangement for a sale of the property, subject to be abrogated if the purchaser saw fit; and the parties provided as to what their relative situations should be if the purchaser did see fit to put an end to it. It is not possible, as it seems to me, that such a paper as this should be said to contain an enforcible contract of sale which would entitle a broker to his commissions.
But if my construction of the paper is not correct, and it is to be construed as a contract with a privilege to the party of the second part to abrogate it if he finds a good reason to do it, and not otherwise, nevertheless, the plaintiff has no cause of action for his commissions in case the contract is actually abrogated. The case is precisely within that of Condit v. Cowdrey (123 N. Y. 463; S. C., 139 id. 273). In that case, as it was made to appear when reported in 123 New York, there was upon the papers an actual contract of sale which entitled the plaintiff to his commissions, and that contract was partly carried into effect. But the defendant offered to show by paroi that the purchasers “ were not willing to pay for the land until they had searched the title, and to give them that opportunity the cash purchase was deferred, as specified in the notes, upon the express agreement that the deeds and the'notes should be placed in escrow till such time as they might be able to be satisfied as to the title, and if the title was satisfactory, they would pay the paper and take the deeds. Those were the terms of the transaction.” In regard to that, the court says: “ If this evidence is true, the alleged vendees never bound themselves to take the land, but preserved their freedom to refuse, and the acceptances * * * were so much waste paper and incapable of being enforced.” The case was sent back for a new trial because of the refusal of the court to receive that paroi evidence, and afterwards, upon a- second trial, it was made to appear that the defendant was willing to take the title provided the deeds' shown to him were in accordance with the abstract; that the deeds were not in accordance with the abstract, and it was understood that if - they were not, the contract was off and no liability rested upon either party. (139 N. Y. 273.) That *296is precisely this case. Even upon the construction which the plaintiff claims must be given to this contract, it was conditional upon the title being satisfactory to the vendee ; and if that title was not satisfactory, or if, for any other reason, he did not see fit to carry the contract into effect, he could not be compelled to do .so, and by its express terms the contract was at an end. ' ■
I.am utterly unable to see any distinction between this case and the case of Condit v. Cowdrey, and for that reason it seems' to me that the plaintiff cannot maintain his action, and the judgment should he affirmed.' ,
Ingraham, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to ;abide event.