(dissenting). Plaintiff is an architect and the designer of the Bintz Swimming Pool, for which a patent is pending. He alleges a breach of a contract made by defendant to employ him to prepare plans for a pool and appurtenances, to receive and open the bids made by contractors, and to oversee and inspect the construction. He was to receive for bis services ten per cent of the cost of the structure, payable in installments; $250 on the signing of the contract of employment; six and one-half per cent, less such $250, on letting the construction contracts, the remaining three and one-half per cent on completion and acceptance of the pool. Plaintiff sent one set of plans to defendant. Nothing further was done by either party. No reason for the abandonment *538is given. The defendant is a small corporation. The president, now dead, managed it as his personal business.
Plaintiff admits that he has received the first installment of $250 and a further payment of $750. The action was brought for the balance of the commissions which he would have been entitled to receive if the construction contracts had been let and the pool completed. No proof was given as to the value of the services performed, or as to the loss of profits on the unperformed balance. Both parties having moved, a verdict was directed for the plaintiff for the entire amount mentioned in the contract, except the last installment, giving credit for the payment admitted. Apparently this determination was arrived at because of the following statement in plaintiff’s letter written to and introduced by defendant’s attorney: “ Inasmuch as this job will not have any supervision, the 3-|% would not apply, but the 6-|% would apply on the estimated cost of the structure.” It was offered as an admission by plaintiff at variance with the demand in the complaint and the damages asked on the trial. It was an admission. (2 Wigm. Ev. p. 1217, § 1048.) Defendant was not bound by it. (22 C. J. 420.) The proper measure of damages was the value of the services rendered and the loss of profits on the unperformed balance. (Jones v. Judd, 4 N. Y. 411; Witherbee v. Meyer, 155 id. 446; Wakeman v. Wheeler & Wilson Mfg. Co., 101 id. 205; Zadek v. Olds, Wortman & King, 166 App. Div. 60.) No evidence was offered on such theory.
It is argued that this is analogous to the usual percentage contract made by real estate brokers. The two are easily distinguished.
“ A person claiming a commission upon a sale of real estate must show an employment, and that the sale was made by means of his efforts or agency. An owner may employ several brokers for the sale of the same property, and is of course only liable for commissions to the one who effects the sale. And although he employs one or more brokers he may negotiate and sell the property himself without liability to any one for commissions. [McClave v. Paine, 49 N. Y. 563.] The undertaking of the broker is to make efforts to procure a purchaser, but if he fails he is entitled to no pay unless there is a special contract.” (Sussdorff v. Schmidt, 55 N. Y. 319, 321.) If inspection and superintendence are included in an architect’s contract, a hen may be filed for the labor on the building. (Stryker v. Cassidy, 76 N. Y. 50; Spannhake v. Mountain Construction Company, 159 App. Div. 727; Swasey v. Granite Spring Water Co., 158 id. 549; Thompson-Starrett Co. v. Brooklyn Heights Realty Co., 111 id. 358.)
The structure proposed contained patentable features and devices. Obviously more than the one set of plans forwarded *539was necessaiy for distribution to proposed bidders to permit them to formulate their estimates. Defendant had no knowledge of the construction of the proposed patented structure. It was specially-designed by plaintiff, who had technical knowledge of its details. He knew, and could advise defendant, whether economically it was wise to let the construction to one general contractor, or to independent contractors equipped to do the several kinds of work. Such services by plaintiff would tend to reduce the construction cost. He was to receive a substantial sum of money, and this contract, prepared by him, was “ ‘ instinct with an obligation ’ imperfectly expressed ” (Wood v. Duff-Gordon, 222 N. Y. 88, 91) to be fulfilled by him. No tender of performance on plaintiff’s part is proven, except the mailing of one set of made-over, form plans from his office. It does not appear that all the acts precedent had been done by him to warrant a recovery for breach of the contract. (Vandegrift v. Cowles Engineering Co., 161 N. Y. 435.)
Defendant’s motion for dismissal upon the ground that a cause of action had not been proven, and for a new trial on grounds mentioned in section 549 of the Civil Practice Act raised both of the above questions. (Lesin v. Shapiro, 147 App. Div. 100; Matter of Brand, 185 id. 134; McNeil v. Cobb, 186 id. 177; Gangi v. Fradus, 227 N. Y. 452.)
I vote for reversal.
Hasbrouck, J., concurs.
Judgment and orders affirmed, with costs.