There is no substantial dispute as to the' facts.. In the year 1904 plaintiff, a real estate dealer, had an office for the transaction of business on Flatbusli avenue, and on or about tile 3d of October, 1904, the defendant listed his' Hostrand avenue property with the plaintiff to be shld for $11,000. In the spring of the following year the plaintiff’s Flatbusli avenue office was closed and the defendant requested to call at the plaintiff’s Court street office to confirm the arrangement theretofore made with him about the sale of his property. The defendant did call and renewed his authorization to the plaintiff, but elected that the property should be sold for the sum of $12,400 instead of the former price.
Unknown to the plaintiff, the defendant had also listed the same with an agent named Murphy, and on the 17th day of October, 1905, o’ne Presberger called at Murphy’s office and offered $13,000 for this property. Murphy did not assume to bind the defendant by accepting that offer, but advised the intending purchaser that lie would communicate at once with the owner and seek to liave the sale closed at that figure. Presberger and Murphy had been consulting together about the property for two or three months. On October 18, 1905, Murphy wrote the defendant that he had a l)onco fide offer of $13,000 for the property, and asked to be advised whether the defendant would accept that offer. Presberger made’ a deposit' of $600 in cash with Murphy.
- On Saturday, October 20, 1905, Presberger called at the plaintiff’s office and asked- after lots in the same general neighborhood. The plaintiff’s clerk called the defendant’s property to his attention and advised him that the price- was $12,400. Presberger then offered to pay that sum for the property all in cash, and made a $400 deposit, the balance to be paid in sixty days. Before he left an agreement was prepared purporting to bind the defendant -to sell and Presberger to buy the property in question for $12,400 ; $400 in cash at the time of the signing of the contract and $12,000 in cash at the time fixed for the delivery of the deed. Presberger signed the contract and paid the $400, and one of the plaintiff’s clerks immediately took it to the defendant to pro'cure his signature. The defendant could not be found, however, until the day following, October twpnty-first, and upon the. matter being called to *637the defendant’s attention and request being made to him to sign the contract,.lie stated that he had already received an offer of $13,000 for the property and expected to get more and would not sell to the person the plaintiff introduced at the sum of $12,400.
It does not appear that at this time the defendant had been advised by Murphy that Presberger was the person who had offered $13,000. It does affirmatively appear*, however, that at this time and for some little time thereafter the' plaintiff had not learned that Presberger had made a larger offer to Murphy. Within a day or two after the defendant had refused to sign the contract prepared by the plaintiff, he called at the plaintiff’s office, where Presberger was present, and the plaintiff there stated to him that if he had bound himself to sell to some other person for a larger figure, it might be that he could not perform at $12,400, but that he, the plaintiff, had produced a purchaser who was ready and able to buy, had earned his commission and would ex'pect it to be paid. Nothing resulted from the interview, however, except a statement of the defendant’s refusal to sell to Presberger for $12,400.
Thereafter and on the 26th day of October, 1905, through the efforts of Murphy, the defendant and Presberger, through an agent, entered into a contract, the former to sell and the latter to buy at $13,500. This was the first writing Presberger or any one in his behalf had executed in relation to the purchase of this property, except the contract he signed which had been prepared by the plaintiff in yjhich the consideration was stated at $12,400.
The judgment should be affirmed. The defendant’s contract with the plaintiff was that if the latter produced a customer ready, willing and able to purchase at the defendant’s terms the defendant would pay the plaintiff his commission. That Presberger was ready, and willing to buy at $12,400 can scarcely be doubted. The question in the case is, .was he able to buy ? • Financially, it is clear that he was able, for he testified to that fact and it also appears that he has actually purchased at a figure larger than that at which the property was by the defendant listed with the plaintiff. And yet . it is doubted whether the plaintiff would have earned his commissions if Presberger had been unable to complete the purchase on account of some legal disability. And yet, legally, too, Presberger *638was able to buy. It is true he had made a verbal offer of $13,000 through Murphy, and had deppsited $600 to apply. The offer was not in writing.' He had signed no contract tó purchase and his offer.' had not been accepted. He was, therefore, entirely free to withdraw the offer made to Murphy, and even if that 'offer had been accepted before its withdrawal, in the absence of a written agreement he could not have been compelled to perform.
.-It must be apparent, therefore, that the plaintiff entirely performed the terms of his contract' with the defendant and procured and introduced a purchaser ready and willing to buy and able to do so in both aspects of the case as we have treated it. , That a commission has been paid to Murphy or that he is in a position to compel the payment of such a commission can, under the circumstances, have nothing to do with the case.
"The judgment should, therefore, be affirmed, with costs.
Hirschberg, P. J., and Rich, J., concurred; Woodward and. Miller, JJ., dissented.
Judgment of the Municipal Court affirmed, with costs. .