The defendant entered into an enforcible contract with one Edward H. Ryan to' exchange certain real properties. The plaintiff claims to have been the broker in the transaction and brings this action for commissions. This appeal is from a judgment in his ■ favor entered on a verdict óf the jury.
The questions whether the plaintiff was employed, whether he was the procuring cause of the making of the contract, and whether' there was a contemporary oral agreement, the performance of which Was' a condition precedent to the taking effect Of the written contract, Were questions of fact, and as such were properly submitted to the jury.
The plaintiff then has procured an enforcible contract to be made. It is immaterial that the contract was never performed or that one of the parties was not in a position to perform it. (Alt v. Doscher,
The judgment and order should he affirmed, with costs.
McLaughlin and Laúghlin, JJ., concurred; Ingraham, P. J., and Dowling, J., dissented.