Three men, named Bradley, owned the stock of the defendant. In the early summer of 1915 the Bradleys considered the manufacture and sale of munitions to the Russian government. For such purpose they had not plant, 'facilities, knowledge, expert skill or sufficient usable capital. They were experienced in enterprises of much importance, largely in the direction of construction work, for which they were adequate in knowledge, appliances and resources. But they entered resolutely upon this new enterprise, so foreign to their education and to the charter of the company, later amended for such an undertaking. They had no contract with the Russian government, and plaintiff presented himself as a person able to procure it. He was the son of a partner in the firm of Coudert Brothers, counsel to the Russian commission come to this country to obtain such munitions. Its head was General Sapojnikoff. Mr. Murray of the law firm was in immediate relation to the affairs in question. *29The Bradleys were in the negotiations under such advice and safeguard as could be afforded by their engineer, Mr. Hopkins, and their regular lawyers, Mr. Lynch, Mr. Keating, and their counsel, Governor Conway, who had the immediate charge of the transaction in question. An instrument was executed by the Russian commission and defendant under the date of October 15, 1915. The services rendered by plaintiff concerning an expected contract with the Russian government, or matters pertaining to it, were the subject of four letters, each dated October fourth. The plaintiff’s entire commission at the stipulated price of ten cents per 1,000 cartridges would be $500,000, but it was separated, as shown by such letters, for purposes not at the moment material. The letters: except as to amounts pertaining to the commissions, are, “ In consideration of the services rendered by you in securing a contract for us with the Imperial Russian Government for the manufacture and sale of One billion * * * cartridges, we agree to pay you, in event of such contract being accepted and executed by us, as full and complete compensation and commission ten cents * * * per thousand cartridges, amounting on the above order of 1,000,000,000 cartridges to the sum of * * * dollars. It is understood that the commission mentioned shall become due and payable only as and when and in the same proportion as we receive payment from the purchaser; that is to say the commission is only to be paid out of the payments under the contract.” The essential stipulations are: (1) The services have been “ rendered ” — things past and complete; (2) the contract is something recognized as secured but not “ accepted and executed; ” (3) the payments are coincident in time and relative proportion with the payments to the company under the contract. At once any argument disappears that plaintiff has or has not earned his commission, but the payment by the terms" must await returns-to the defendant. It was, then, inevitable for payment to plaintiff and defendant that the contract should be accepted and executed, and that the payments should be received. To such purposes the parties bent their energies. What was the result? The defendant did accept and execute a contract with the Russian government under the date of *30October 15, 1915. Was it the contract for securing which defendant agreed to pay plaintiff? The defendant on October nineteenth, four days after the date of the contract, wrote Adriance, Green and Lynch, whom I will call the Adriance syndicate, “ we have closed the contract between ourselves and the Imperial Russian Government.” Why write that? Because the defendant had agreed under date of September 29, 1915, with the syndicate to buy so much of the stock of the Savage Arms Company as would insure its control and the sellers had stipulated upon certain payments made to turn over the control of the Savage Arms Company. In such agreement of September twenty-ninth the parties had stipulated: “ If within fifteen (15)' days the party of the second part fails to close a deal for cartridges with the Russian Government, negotiations for which are now pending, the parties of the first part agree to extend this option for the further period of fifteen (15) days without additional expense to the party of the second part. Should the party of the second part close a contract for cartridges during the periods aforesaid, it shall immediately notify the parties of the first part in writing of its intention to take up this option and the parties of the first part hereby agree to give the party of the second part fifteen (15) days’ time from the service of such notice within which to make the necessary financial arrangements to make the payments provided for herein.” Note the terms — if the “ party of the second part fails to close a deal for cartridges with the Russian Government,” and again — “ Should the party of the second part close a contract for cartridges * * * it shall immediately notify the parties of the first part.” For such reason the defendant wrote the.letter of October nineteenth wherein it said: “ We hereby notify you that we have closed the contract between ourselves and the Imperial Russian Government.” And yet I hear argument, impossible of truth, that the defendant had not, as regards itself and this plaintiff, closed a contract with the Russian government. There was no other contract pending. The defendant for some time, in association with plaintiff, had been in negotiation with the Russian agents. There had been proposals and counter-proposals, and when the defendant wrote the letters to the plaintiff the *31terms of the Russian contract had been formulated, and there was left to the defendant the option to take or to reject it. The defendant accepted, and executed it.. There was, then, a consummation that left two things established: (1) Full performance by plaintiff; (2) the actual acquisition of the contract. There was still something that stood between plaintiff and the receipt of his commissions, to wit, the receipt of them by the defendant. But the proposition is advanced that the defendant at its pleasure or convenience could avoid receiving payments to it, and thereby defeat payment to the plaintiff. Let the result be considered from two views: (1) Willful refusal of the defendant to proceed; (2) financial inability to proceed. The broad proposition adverse to plaintiff is that the whole matter was one of adjoint adventure, and that the defendant was at liberty at any juncture before or after the execution of the contract to toss it aside in total disregard of plaintiff’s procurement of it, and defendant’s promise found in the words, “ we agree to pay you.” All plaintiff’s labor, then, and the enterprise itself, was at the peril of defendant’s humor or disposition — something with which it could trifle lightly and with no consideration and unconstrained, as if there had been added to its written promise, “ the plaintiff assumes the chance that defendant may at any time, and at any stage of the contract or manufacture under it, fitfully refuse to concern itself with it.” I turn from such suggestion to a juster subject of discussion, viz., could defendant, after the execution of the contract, refuse to proceed upon the plea of financial inability without breach of legal duty to the plaintiff. If the answer be in the affirmative, it adds to the contract this term: “ The plaintiff assumes the risk of the defendant’s financial ability to fulfill the contract after its acceptance and execution and thereby earn the moneys out of which plaintiff’s commission is payable.” I deem such conception inconsistent with usual legal obligations of the kind here involved. The plaintiff did ass me many hazards — so varied in fair consideration of the undertaking that they are beyond present enumeration or perchance conception. But it is not rational argument that, if the enterprise had not failed through defendant’s default,' it might have been wrecked by other dangers that *32would be related to it. The imagination may conjure baffling and destructive agencies, but the record reveals a single cause — the failure of the defendant to provide the money to go forward whereby would accrue the fund from which plaintiff’s commission was payable. The law regards the fault that is, and not one of many that might have been. That fault put an end to the enterprise, and hence no others could act upon it. It was the defendant’s peculiar province to measure its resources against the demands of the project. It represented to the Russian commission that it had “ liquid assets of a little over $8,000,000,” and in addition that the three Bradleys had individual assets aggregating $4,625,000, “ altogether a total of $12,625,000 net liquid assets after all bills are paid,” and, as later indicated, the conditions of the Russian contract were not met for failure to raise $4,284,000, plus some interest, whereof $800,000 was to be evidenced by notes running through periods not exceeding ninety days. There were other capacities and resources which the defendant represented itself as possessing. And yet it did not fulfill the conditions of the Russian contract, either because it had the means but would not use them, or because its ability to make them available was insufficient, or because it had not the means, and the proposition is that the plaintiff took the chance of the failure, whatever the cause. One valuable thing presumably possessed by the defendant was capital. It could and did point to that as something dependable and for which it could vouch. And yet aiiy and all infirmity in that regard must be at plaintiff’s risk — so the argument runs. If a broker agree that he shall not be paid a commission until his principal receives a deed of land or the consideration money, and either fail because the principal has not the land to convey or the money to pay, whichever be his stipulated obligation, the broker does not take the risk. The broker is not deemed to know the contents of the principal’s pocket, or if it be represented as $12,625,000 net, the broker does not hazard the degree of its purchasing power or the principal’s skill in administration. The defendant’s task was to adjust its potentiality in finance and property to the demands of the enterprise, and to accept or to reject available terms according to its judgment. The plaintiff was not in position to weigh *33defendant’s money might beyond the exposure made, or to question the judgment it should exercise. Every man is free to determine the degree of his achievement. He may say to his broker, “ When the property, which you procure me the right to buy, shall come to me, payment shall come to you,” but when the right is procured for the principal, he may not say that he will not, or cannot, pay for it, and so prevent the happening of the event on which the broker’s payment depends. In my judgment, the sole question is — was the Russian contract that which was contemplated by the agreement with plaintiff, and did it fail because defendant could not or would not expend the money to make it effective? The contract provided: “ This contract shall not become effective until the Manufacturer (a) has acquired the plant of the Savage Arms Company, control of its Board of Directors and of all of its executive officers, (b) has secured the services of experts who thoroughly understand and are experienced in the manufacture of cartridges, (c) shall have made contracts for the raw materials necessary for the manufacture of the cartridges and also contracts for machinery and structures to effect a substantial enlargement of the plant of the Savage Arms Company * * *. (d) has delivered bond hereinabove referred to for Two million * * * Dollars, and has submitted proof of the facts in ‘a,’ ‘b’ and ‘c’ hereof to the Purchaser.” The manufacturer had stipulated “ to manufacture, sell and deliver, and the Purchaser to buy and take one billion * * * cartridges, upon the following terms and conditions.” But such term of the contract, like the others, was not effective until the conditions were performed. The defendant did not agree with the Russian government to perform the conditions. Even its attempted performance must be proved to the Russian government. Without complying with the conditions no cartridges could be delivered under such contract, and no money could be received by defendant out of which plaintiff could be paid. The contract not unconditionally effective was not, at the stage of its execution, the fruitful thing the agreement with plaintiff contemplated, because there could not issue from it the fund out of which plaintiff was to be paid. But it was the contract *34consequent on the plaintiff’s and defendant’s long and continued concerted striving; it was the one that defendant accepted and executed, and above all it was the one that defendant could consummate to bind the Russian government and thereby become the productive arrangement the plaintiff and defendant had forecast. In the negotiation plaintiff and defendant had foreknown the conditions as inevitable, and had put forth efficient efforts to make provision for fulfilling them. It appears that the Bradleys were prepared to perform the last three conditions, and so attention may be confined to the acquisition of the control of the Savage Arms Company in the manner and to the extent required. That was not achieved, although the parties through considerable time and varied and extensive activities tried to realize it. ¥/hat was done and what caused the failure in that regard? I have noted that before the contract of October fifteenth with the Russian government, and in anticipation of its requirements, and under the date of September 29, 1915, the defendant agreed with three persons, Adriance, Green and J. De Peyster Lynch, to buy at least 6,400 shares of the stock of the Savage Arms Company at the price of $380 per share, “ the same to be payable as soon as the said assignment and the stock so assigned shall be properly executed and delivered to the said party of the second part.” The defendant agreed to pay $100,000 upon the purchase price to be forfeited as liquidated damages if the Bradleys failed to pay the balance on October 14, 1915, or at the date as extended, for which provision was made. A further consideration of the sale was that the Bradleys should pay the vendors $1,700,000 “ upon the parties of the first part delivering to the party of the second part their written * * * agreement not to engage in the manufacture or sale of firearms or ammunition ” within the United States for a period described. The agreement shows its interrelation to the Russian contract expected but not at the time acquired. I will not repeat the quotation in that regard already given. The faculties of both plaintiff and defendant were devoted to carrying the two agreements to consummation, letting, however, the Savage Arms contract wait upon the execution of the Russian contract, and after that agreement had been, *35executed they continued to supplement it and perfect it by gaining needed control of the Savage Arms Company. There remained nothing for defendant to do, save to meet the Adriance syndicate, pay the money agreed to be paid by the contract with it, and the Savage Arms Company would be in defendant’s control, and the condition in the Russian contract would become performable. The defendant and the Adriance syndicate met to perform, and there were adjournments and postponements, but the defendant did not do as it had agreed. It would be simply diverting from essentials to consider the varied contentions that attended the progress of the attempted fulfillment of the contract of September twenty-ninth, and the amendment of it, to which I shall refer. The Bradleys initially contended that they should have the 6,400 shares of stock upon paying the Adriance syndicate $360,000, and giving the company’s notes indorsed by the Bradleys individually for the balance of the sum it had agreed to pay. The whole principal sum to be paid was some $4,288,000, less, may be, the $100,000 that had been advanced. The defendant not only demanded such credit, but insisted upon the concurrent transfer to it of the control of the directorate of the Savage Arms Company, and the investment of the Bradley interest in its executive officers. There was nothing in the agreement that suggested or tolerated such demand. The Bradleys based it upon the contention that there had been an oral option that promised it to them, and that the same was considered as a part of the written agreement, but was not written in it because Governor Conway at the suggestion of Adriance, or otherwise, did not deem it necessary. However, disregarding the improbability that the Adriance syndicate would turn over its company upon so slight payment and credit, the fact remains that no intimation of it appears in the written contract, but rather its language is concise and plain that the stock was to be paid for on proper assignment and delivery, and the $1,700,000 to the syndicate upon its performance. The contract with the Russian government proposed the deposit of several millions of dollars to meet the payments for ammunition furnished by the Bradleys, and it was defendant’s plan that, after paying ten per cent to the syndicate, it would give notes *36which, with renewals, could be met from such deposit as payments became due therefrom. There is nothing whatever in the agreement of September twenty-ninth to justify such proposition, and it should be rejected. However, after much discussion, on October twenty-seventh the Bradleys agreed to increase the amount that should be paid in cash to the sum of $1,043,000, and they proffered a certified check for that amount. Their contention is that upon meeting the syndicate, the latter in the forenoon agreed to accept such cash, but after lunch rejected it. The chief difficulty, as it seems, was not so much the immediate sufficiency of that amount as the surrender of the directorate of the company and its executive officers to the Bradleys. After discussion and difference of opinion, it was concluded that the sufficiency of mere stock control should be submitted to the Russian commission, which, however, continued to require actual control of the company through its directors and officers. I do not delay to inquire whether the oral agreement did provide for a payment of ten per cent in cash with credit so extended for the balance. Frank Bradley, William Bradley, Lynch, the attorney, and Hopkins, the engineer, so testified, but the memorandum under date of September 15, 1915, made by Adriance at the time and copied by Bradley, does not so state, and it is denied by Adriance, Lynch and Green. If it were necessary to decide the question, the implied finding of the court favorably to the plaintiff should be sustained. But the unambiguous provision in the contract forecloses discussion. But whatever the merit of the contentions of the parties when they met on October twenty-seventh to close the contract of September twenty-ninth, all was composed by the contract of October thirtieth, where it was explicitly determined what should be done, viz., pay $800,000 in cash and for the balance of the $4,284,000 give notes, with an extension of time for closing, which was arranged for November twelfth and later extended to November seventeenth, on which day the Bradley Company did not fulfill, and had no legal excuse for their default. What, then, was the situation? The defendant had the Russian contract for which it and the plaintiff had been working. It was the contract to which the plaintiff and defendant referred in their *37contract, and that to which reference was had in the agreement of September twenty-ninth between defendant and Adriance and others. To make it effective, the performance of conditions was necessary — but such performance was to be made solely by defendant. Hence, it had the sole right to make an ineffective contract effective, to give it a perfection and life indisputable by the Russian government. The defendant knew what the conditions would be. It agreed to accept a contract containing them. It had secured all rights necessary to perform them. It had a contract that would bring the Savage Arms Company within the condition. It notified the other party to that contract that it was ready and demanded performance. Nothing stood in its way save the payment of what it had agreed to pay. All was within its command and subject to its dictation. But it opened its hand and let go the whole sum of its acquisitions, because it would not or could not pay what it had promised to pay. The feature of the case on which thought concentrates is the acquisition not only of the Russian contract, but the means of satisfying its exactions. Then defendant proclaimed its financial inability or indisposition, and let the whole system of agreements disappear. The enterprise did not fail because the defendant had not a contract with the Russian government which it was legally enabled to fulfill, but because financial apprehension, prudence or necessity prompted or constrained it to fail in its agreements. So the whole matter comes back to the inquiry whether the plaintiff assumed the risk of misadventure from such cause. I cannot conceive that the parties to the agreement left the obligation of it to the whim of the capitalist, as if promises were the mere sport of vagaries, or that the defendant could, on a plea of poverty or frugality, let slip the thing secured and thereby defeat the commission of the procuring agent.
I conclude that the judgment should be affirmed, with costs.
Judgment and order reversed and new trial granted, costs to abide the event. This court reverses the verdict and findings of the Trial Term as contrary to the evidence and contrary to law, and particularly the finding of the trial justice so far *38as the same is involved in the verdict, that it was the intention of the parties that the plaintiff was entitled to payment of commissions upon the signing of the contract between the Imperial Russian government and the defendant, or upon the signing of acceptance of the option on the stock of the Savage Arms Company, and the finding that failure of performance was due to any act or default on the paTt of the defendant.