In my opinion the case was tried and submitted to the jury upon an entirely erroneous theory. That theory is illustrated *759by the following sentence from the charge of the court: “ This is what we ordinarily call a brokerage case — a case in which a broker sues for a commission. The law is that a broker is entitled to a commission for a transaction provided the transaction be procured, as we call it, or concluded, as it may be, through his effort and during the time of his employment. That practically covers the real issue that you will have to determine. Was this transaction concluded through the efforts of Mr. Dukelow, and was it concluded during the time of his employment ? ”
As I read the evidence this is in nowise an ordinary brokerage contract, because while it is conceded that Mr. Dukelow was employed by defendant to render certain services, he was not employed, nor was he ever authorized to negotiate a sale. His authority and duty were apparently limited to negotiating between the parties and bringing them into a position where they could negotiate between themselves. Defendant owned patent rights for a device believed to be useful in telephony. A very obviously desirable, but apparently a very indifferent customer was the American Telephone and Telegraph Company. The defendant’s officers naturally desired to be brought into touch with that company, and plaintiff’s assignor, owing to his personal relations with the vice-president of the American company, appeared able to bring the parties within negotiating distance of each other. This he did, and it was after he had done this that the contract was made to pay him a commission. That contract is evidenced by a letter which is not disputed. By it plaintiff’s assignor was to be paid a special commission “if a sale is made,” not if he effected a sale because he was never put by defendant in a position to negotiate a sale—that matter was reserved by defendant’s officers for their own management. Dukelow had then done all that he had apparently been" employed to do — certainly all that he was asked or authorized to do. He had brought the parties together and paved the way for the sale that was afterwards made. From that point there remained only to agree upon terms and price, and this the defendant kept in its own hands. Dukelow undoubtedly took the chance that no sale would be made. If it had not been he would have been entitled to no *760commission. It was made however, the condition of his contract was fulfilled, and he became entitled by the very terms of the contract to his agreed commission. That the sale in the end took the form of a license, which one of defendant’s officers testified was “practically a sale,” does not, as I think, affect plaintiff’s right to recover.
In my opinion the plaintiff’s motion for the direction of a verdict should have been granted. The judgment and order appealed from should be reversed and judgment directed in favor of the plaintiff, with costs in this court and in the court below.
Laughlin and Clarke, JJ., concurred; Ingraham, P. J., and Hotchkiss, J., dissented.