The defendant, on September 28, 1910, submitted to plaintiff a proposal to furnish certain doors and trim for buildings about to be erected by the G-ainsborough Building Company, as per its estimate of September 27,1910, for the sum of $10,664.46, which was on October 3,1910, accepted by plaintiff by an order of that date; whereupon, on the same day, plaintiff made a proposal to sell the same trim to the Gainsborough Building" Company for the sum of $13,500, which was accepted by thatcompany. Thus, on the written contracts between the parties, the transaction was a sale by defendant to the plaintiff and a sale by plaintiff to the Gainsborough Building Company at an advance of $2,835.54. Plaintiff alleges in his complaint that he had an agreement with the defendant that “ if the plaintiff would procure either in his own name, for and on behalf of the defendant, or in the name of the defendant, a contract to furnish the trim work for the buildings * * * that the said defendant would pay for the services rendered by this plaintiff in procuring said contract a sum of money equal to the difference between the contract price to be made between the owners of the aforesaid buildings and the plaintiff * * * and the sum of Ten thousand six hundred and forty-six and iW ($10,646.46) Dollars, it being the intention of the above-named plaintiff and defendant that the said defendant was to charge the aforesaid sum of Ten thousand six hundred and forty-six and T4W ($10,646.46) Dollars for the aforesaid trim and that the difference between that sum and the amount that the owners of the aforesaid buildings in course of con*798struction agreed to be paid therefor was to be paid to this plaintiff by the defendant for his services in procuring the aforesaid agreement. ”
The defendant denied this agreement as thus alleged and alleged a contract of sale from the defendant to the plaintiff; that defendant carried out the contract and delivered certain of the articles so sold until the breach of the said contract by the plaintiff; that plaintiff has failed to pay $2,300 agreed to be paid for the sale and delivery of the standing trim, and that after allowing plaintiff credit, to which he was entitled, there was due to defendant from the plaintiff $1,918.16, for which defendant demanded judgment.
Plaintiff testified to a conversation with the defendant’s representative in which he told defendant’s representative that he, plaintiff, could obtain for defendant a contract for furnishing the trim work for seven large buildings in Brooklyn, to which defendant’s representative said,. “ go on, bring up the plans and we will figure on the job; ” that he went on and got the plans and gave them to the defendant’s representative, who subsequently gave plaintiff his estimate of $10,664, and, on plaintiff’s asking what there was in it for him, defendant’s representative said, “Well, * "x" * I will give you the difference between what you get and this $10,664;” that plaintiff then went on and got an offer from the Gainsborough Company of $13,500 for the job. Plaintiff then brought Gainsborough, who was president of the building company, to the defendant, and who gave the defendant references; when subsequently defendant wrote to plaintiff that it would not sell except on a secure basis, that the commercial report was not sufficiently encouraging to permit defendant to make any other terms. Afterwards defendant’s representative said he would not take the job unless he could get security. Plaintiff then testified that he got what he called some security, when defendant said they could not sell to the builders, that plaintiff would have to act as though defendant were selling the stuff to plaintiff and plaintiff were selling the stuff to the builders, that plaintiff was acting as defendant’s dummy in the transaction, and plaintiff said that this was satisfactory. Plaintiff subsequently testified that defendant’s representative *799said to the builder, “We can’t sell trim to you, as you are a builder. We have to sell it through Finkelstein, who will act as our dummy in this transaction.” Plaintiff further testified that he signed various papers for the defendant, most of them without reading them, and swore to complaints and affidavits, claiming to be the owner of this property which defendant had sold and delivered for these buildings.
Assuming that this correctly states the relations between the parties, I do not think it sustained the allegations of the complaint or the cause of action therein alleged. Plaintiff had obtained a contract with the Gainsborough Building Company for the purchase of this trim. Defendant had agreed to sell the trim for $10,664.46. The building company had agreed to pay $13,500 for the same trim. Plaintiff was to act as dummy in the transaction, taking a contract for defendant at the price that they were willing to sell for, and making a contract with the building company for what they were willing to pay, and was to receive as compensation the difference in the prices. It seems to me that this was all based on the assumption that the contract was to be completed. What plaintiff was to receive was all that the building company paid in excess of the $10,664.46 which the defendant was willing to accept for its goods. There was no agreement to pay commissions for obtaining a contract from the building company, but what defendant agreed to was that it would give plaintiff “ the difference between what you [plaintiff] get and this $10,664.” If the contract had been completed and defendant had got its $10,664.46, then plaintiff would have been entitled to anything in addition that plaintiff got out of the building company; but the contract was never completed. Defendant did not get its $10,664.46, and, therefore, on the contract as testified toby the plaintiff the latter never became entitled to anything from the defendant.
I am also inclined to think that the verdict was against the weight of the evidence. The plaintiff calmly sweeps away contracts, letters, affidavits and complaints executed and verified by him by saying that he did not read them and signed what he was told to sign. This is contradicted by the attorney who prepared them, and it cannot be assumed that he committed *800perjury. I do not think a party to an action should nullify formal instruments and legal papers, verified by his oath, in this manner.
I think, therefore, that the judgment should be reversed and a new trial directed.
Judgment and order affirmed, with costs.