I do not agree in the affirmance of this judgment, The plaintiff in his complaint has characterized the services that he was employed to render. He alleges that he was “to use his influence and endeavor to procure a purchaser or purchasers of their interest in the said Hoboken Ferry Company, and defendants agreed to pay plaintiff liberally therefor.” The . plaintiff testified that on October 2, 1895, having had some conversation with a Hr. Hopkins, who was the president of the New York, Susquehanna and Western Railroad Company, he saw the defendant Edwin A. Stevens and asked him whether he and his family were willing to negotiate for the sale of the Weehawken Cove and the Fourteenth Street ferry, and whether he would authorize the plaintiff to find a purchaser for it or for those pro]3erties. In reply Hr. Stevens said “ Yes,” and the plaintiff then told Stevens that the people that he had in mind were the Susquehanna and Western Railroad Company, and said to Stevens that “ If he would give me' authority to negotiate with these people I would be able to bring about — that I would be able to interest these people. He says: 6 All right. Go ahead and see what they want, and when you find out what thev want come and see me again. All right!’ ”
Thus, at the beginning the plaintiff was authorized to negotiate *210a sale of the Fourteenth Street ferry and the Cove. In pursuance of this authority the plaintiff proceeded to negotiate for the sale of the Fourteenth Street ferry and the Cove property; had interviews with Hopkins and was referred to a Hr. Eldridge, who was connected with the railroad company. The plaintiff had an interview with members of the Stevens family on the fourteenth of October, and then informed them that he had seen Hr. Hopkins of the Susquehanna road; that he (Hopkins) was ready to consider it and wanted to know what price the ferry could be obtained at and at what price the Cove could be obtained.
This employment in regard to the Fourteenth Street ferry and ' the Cove was not a mere employment to find a purchaser, but an employment to negotiate a sale of those properties.. There was nothing said about -finding a purchaser for them as distinct from negotiating the sale, and I think that the plaintiff assumed the obligation of a broker to negotiate for the sale of this property for the defendants'. His subsequent conduct under this employment corroborates this view of the relation that, he bore to the defendants. He continued to negotiate with Eldridge, to whom he had been referred by Hopkins, and Eldridge made an offer to purchase the Fourteenth Street ferry for the sum of $850,000. That offer the plaintiff submitted to the ferry company in writing as follows:
“Hoboken, N. J., Nov. 13, 189 .
“ Hoboken Ferry Co.,
“ Hoboken, N. j.:
“ Dear Sirs.— I have received as your agent a proposition from Hr. Roswell Eldridge, in which he offers to purchase your ferry, running Hoboken between 14th & 14th St., New York, for $850,000, $250,000 in cash, $600,000 in bonds.
“ Yours very truly,
“ A. G.”
(A. G. standing for Archibald Gracie.)
On November sixteenth, two days after this letter was written, the Hoboken Ferry Company declined the proposition and communicated that fact to the plaintiff. .When this fact was submitted to Eldridge he wished to see the defendants himself. Subsequently. Eldridge made a-higher offer to the defendants which was accepted, and an agreement made by which he purchased the Fourteenth. *211Street ferry. During this time the plaintiff was assumedly acting as the representative and agent of the defendants, conducting the negotiations with Eldridge on their' behalf. He had a special con" tract with defendants as to the compensation that he was to receive in case he sold the property known as the Cove, but had no special agreement as to the compensation that he was to receive for the sale of the Fourteenth Street ferry. He was constantly asking for some agreement as to his compensation for the sale of the ferries. "While he was thus acting for the defendants, and on October thirty-first, Eldridge made a proposition to the plaintiff by which he (Eldridge) was to pay the plaintiff $10,000 for services that he should render in connection with the Fourteenth Street ferry. In answer to that proposition the plaintiff testified that he told Eldridge that he would not answer him at the time, but would let him know later on, and on November 4, 1895, Eldridge renewed this proposition in writing, which was delivered to the plaintiff as follows:
“ Confirming our conversation of last week would say that if I succeed in buying the 14th Street Ferry from the Stevens Estate or Hoboken Ferry Company within thirty days, I will pay you ten thousand dollars for your services in the matter. If there is no sale then nothing is to be paid you.
“ Tours truly,
“ ROSWELL ELDRIDGE.”
The plaintiff, in his testimony, says that the fact was that on October 31,1895, he had a conversation on the subject with Eldridge, the subject being that the plaintiff was to receive $10,000, and that that was confirmed in writing on the fourth of November. That writing the plaintiff retained until at the end of the year he received $10,000 from Eldridge and surrendered the instrument. The plaintiff failed to communicate the receipt of this proposition from Eldridge to the defendants; and thus, during the time in which he was acting as the agent of the defendants and directing a negotiation for them for the sale of the Fourteenth Street ferry, he had in his possession a written promise from Eldridge to pay him $10,000 if the sale took place. At the interview between Eldridge and the defendants, after the defendants had rejected Eldridge’s offer to purchase the ferry at $850,000, Eldridge informed the defendants of this arrangement with the plaintiff, and from that time on the defend*212ants refused to have further dealings with the plaintiff, and refused to further'recognize him as their agent., He received his compensation for the sale of the Fourteenth Street ferry, not from the defendants, but from Eldridge, and as soon as defendants knew of plaintiff’s' agreement with Eldridge they insisted that, by reason of his agreement to receive his compensation from Eldridge, he had relieved them from all obligation to pay him; and in that view, so far as the Fourteenth Street ferry was concerned, the plaintiff acquiesced, and made no claim against the defendants for any commissions for the sale of- that ferry. There can be no question, I think, but that the defendants had a right to take the position that they did, and that the plaintiff, by his acceptance of this offer' from Eldridge, relinquished any right that, he might have to claim compensation from the defendants for services rendered to them under his employment. He had received, while the broker of the defendants, an offer which he at least did not reject, for a payment from the person with whom, as the defendants’ agent, he was negotiating,, upon condition that the transaction was completed. Under all the authorities, this was such, a violation of the duty that he owed to the defendants as to justify the defendants in refusing longer to employ him, and terminating any employment that he had from them as their agent.
We now.turn to the transaction in relation to which the plaintiff makes his claim against the defendants. The plaintiff testified that at the interview of the 14th of October, 1895, with the members of the Stevens family in relation to the sale of the Fourteenth Street ferry and the Cove property, Mr. Richard Stevens said to him : “ Mr. Grade, why don’t you find some gentlemen whom you can interest and bring over here to see us, who will purchase the whole property from us. My brother, Edwin A. Stevens, is ill; while we are willing' to' sell the other ferry, at the same time the burden of all this business falls upon him, and if you only sell the upper ferry that will not take the burden off our hands; but if you will find us a purchaser for the lower ferry and the whole property we will pay you liberally:” To that the plaintiff replied : “ I didn’t know before that you were willing to sell the whole property. I am glad to hear it, and I will undertake it.” The defendants then gave to the plaintiff the detail's .relating to the lower ferries, running from Barclay and *213Christopher streets, New York, to Hoboken, and about the sale of which nothing before had been said. The plaintiff subsequently communicated this offer to Mr. Eldridge, and endeavored to interest Mr. Eldridge in the purchase of these lower ferries. Eldridge, however, refused to entertain that offer, stating at the time that, in consequence of the stringency of the money market, and for other reasons, it was impossible for him to make.the purchase, but that he would at present negotiate for the sale of the Fourteenth Street ferry, and would be willing to purchase the lower ferries in the following spring. The plaintiff’s own account of his negotiations with Eldridge in relation to these lower ferries shows that he acted in relation to them in the same way that he had acted in regard to the Fourteenth Street' ferry; that he was negotiating with Eldridge for the purchase of the lower ferries. He communicated to Eldridge the offer that the defendants had authorized him to make for these lower ferries, stating that he was authorized to offer them for sale for $4,750,000, subject to a mortgage of $1,000,000 upon the property. That was the only offer that the plaintiff was authorized to make for the defendants. At the same time the plaintiff told Eldridge that the defendants had said to him that in the event of the plaintiff’s not being able to get as high a price as that for it, they would be willing to accept $4,500,000, subject to the mortgage for $1,000,000, information which it is quite evident defendants did ribt intend should be communicated to the proposed purchaser. Thus, it would appear that the plaintiff was not really at this time endeavoring to procure the highest price that he could, but when authorized to make' an offer for a certain sum, he informed the proposed purchaser (Eldridge) that the defendants would accept a less sum, and this at a time when Eldridge had not refused the offer, but had simply refused to negotiate at that time for the párchase of the lower ferries, wishing to postpone such negotiations until the spring, when the condition of the money market would make a purchase more convenient. The plaintiff had at the time in his pocket an offer from Eldridge to pay him for his services in negotiating the sale of the Fourteenth Street ferry, that he had not communicated to the defendants. The interest of the defendants was to get the highest price for the property;, the interest of Eldridge was to get the property at the lowest price. If plaintiff had been acting in *214good faith for the defendants, he certainly would not have informed Eldridge that, although he had been authorized to offer the property for $4,750,000, it could be purchased from ..the defendants for $4,500,000. As before stated, Eldridge refused to negotiate at that time for the sale of the lower ferries, and .nothing further was said or done about the lower ferries during the conduct of the- negotiation, in which the plaintiff took an active part. When, however, Eldridge communicated to the defendants the fact that he. had promised to pay the plaintiff the sum of $10,000 for his services in the negotiation of the Fourteenth Street ferry, the defendants at once refused to recognize the plaintiff as their agent, repudiated all obligation to him on account of any employment.of theirs, and refused to allow him to further conduct the negotiation .on their part, upon the .ground that the plaintiff had at the time he was acting for them in regard to the Fourteenth Street ferry accepted a promise from Eldridge to pay him a commission; and unless we are to overrule all the .authorities under which a broker is required to act in good faith towards his principal in the conduct of negotiations of this kind, it seems to me that we must hold that the defendants had a perfect right to repudiate all relations ■ with the plaintiff after the discovery that he had received and accepted an offer of payment from the person with whom he was . negotiating as agent of the defendants for. the'sale of their property. As a ‘ fact, however, I do not think that the plaintiff did procure or introduce to the defendants a purchaser for the lower ferries." Before anything was said about the sale of the lower'ferries plaintiff was negotiating with Eldridge for. the purchase of the Fourteenth Street ferry. He submitted a proposition that Eldridge .should purchase the lower ferries. This Eldridge rejected ; and all that was doné by the plaintiff about the lower ferries was that during the negotiation for the sale of the Fourteenth Street ferry he submitted the proposition for the sale of the lower ferries to Eldridge, who declined it. He never, therefore, procured a purchaser for the lower ferries. He did for the Fourteenth Street ferry, • and for that he was paid. The fact that Eldridge more than six. months afterwards purchased.the lower ferries would hardly, I think, justify a claim by the plaintiff that he had procured Eldridge as a purchaser for the lower ferries; and certainly to sustain this *215recovery, allowing to the plaintiff the enormous sum that was given to him by the juzy because during the conduct of the negotiation of the sale of the Fourteenth Street ferry he suggested to Eldridge that he purchase the whole ferry system, which proposition Eldridge declined, would be allowing the plaintiff a compensation for services that he never rendered. In the examination of the experts as to the value of the plaintiff’s services, their opinion was based upon the reasonable compensation to be paid to an agent or broker who conducts a sale of property for the price at which these lower ferries were purchased. No one testified that the services rendered by the plaintiff were worth anything like what plaintiff has recovered ; and if the plaintiff was entitled to recover anything, which I dispute, he certainly would be entitled to recover only the value of the services that he rendered during these few days in October and November, after he made the suggestion about the purchase of the lower fenfies and before his employment was revoked. There was no evidence of the value of the services that were actually rendered by the plaintiff, and. under the ciz’euinstances, I think the defendants were entitled to have charged the request that the evidence of the plaintiff and his witnesses as to the value of the services should be disregarded in determining the amount of their verdict. The court refused so to charge, and counsel for the defendants expressly excepted to the refusal “ in the case of each request made by the defense,” which was z’efused.
That $112,500 was the “ reasonable value of the services ” rendered by the plaintiff, was unsupported by evidence, and the amount seems to me to be out of all proportion to the services actually rendered and grossly excessive. It is hardly necessary to cite authorities to sustain the proposition that, where a broker is employed to negotiate the sale of property, his acceptance without the knowledge of his employer of an agreement to receive compensation from a purchaser is a breach of trust and prevents him from recovering any compensation from the seller. In Carman v. Beach (63 N. Y. 97) the court say: “ If the plaintiff proceeded to act under this employment, it was his duty to act solely for and in the defendant’s interest. This, although not expressed, was implied in the contract. The defendant was entitled to the disinterested efforts and judgment of the plaintiff in the matter of the agency, and, if the plaintiff had *216procured a purchaser, for whom, he was also'acting as agent, without disclosing the fact to the' defendant, it would have constituted such a fraud as would have precluded him from recovering any compensation. * * * When the plaintiff undertook to deal for Martin, it was equivalent to a renunciation .of the agency for the defendant, and nothing short of an unequivocal recognition by the parties thereafter of the existence of the agency should be regarded as sufficient to establish it.” In Murray v. Beard (102 N. Y. 505) the same principle was applied, the court saying : “ The plaintiff,, while assuming to act for the defendants in obtaining the contract of sale, was in fact under equal obligations to competing dealers to assist them in effecting the same sale. Thus, if the plaintiff’s services could have been of advantage to any one, he was under the necessity of being treacherous to one employer or another. An agent is held to ubérrima fides in. his dealings with his principal; and, if he acts adversely to his employer in any part of the.transaction or omits to disclose any interest which would naturally influence his conduct in dealing with the subject of the employment, it amounts to such a fraud upon the principal as to forfeit any right to compensation for services. * * * It is an elementary principle that an agent cannot take upon himself incompatible duties and characters, or act in a transaction where he has an adverse .interest or employment. * * * In such a case he must necessarily be unfaithful to one or the other, as the duties which he owes to his respective principals are conflicting and incapable of faithful performance by the same person.” And the rule is again stated in the case of Knauss v. Krueger Brewing Co. (142 N. Y. 70), where the court say: “We agree perfectly with the cases of Carman v. Beach (63 N. Y. 97) and Murray v. Beard, (102 id. 508). * * * It is undeniable that where the broker or agent is invested with the least discretion Or where the party has the right, to rely on the broker for the benefit of. his skill or judgment, in any such case an employment of the broker by the other side in a similar capacity or in one where by possibility his duty and his interest might clash, would avoid all his right to compensation. The whole matter depends upon the character of his employment.” As was said in Porter v. Woodruff (36 N. J. Eq. 174): So jealous is the law upon this point that it will not even allow the agent or trustee to ’ put *217himself in a position in which to he honest must be a strain upon him.
I have discussed this question solely upon the evidence offered by the plaintiff upon the trial, assuming that his account of the transaction is true:
At the close of the plaintiff’s case the defendants moved to dismiss the complaint upon the ground that “ the defendants having learned from Éldridge prior to Hovember 29, 1895, of the transaction between him and the plaintiff, they had thé right to decline to continue his employment, if there was any employment.” I think upon this ground the complaint should have been dismissed, and that it was error to deny the motion.
Judgment and order affirmed, with costs.