I concur in the result, because it seems to me to be evident that there must be a new trial.
Plaintiff having sued defendant upon the theory approved in Lawrence v. Fox, namely, that defendant had promised to pay the obligation of Feldman to plaintiff, the relevant relations between plaintiff and defendant were the very essence of the transactions, and since this proof was excluded plaintiff is entitled to a new trial.
I think that there is an intimation in the opinion of Mr. Justice Mullan to the effect that plaintiff cannot recover unless the transaction was carried out in the precise way which Feldman had proposed to Freed when he employed the latter. From so much of the evidence of the transaction as filtered through, notwithstanding the rulings of the learned trial judge, it appears as though Feldman had employed Freed to find a purchaser for his stock of goods and an assignee of the lease under which Feldman was a tenant and which had about a year and a half to run. The purpose of this employment was manifestly to secure to Feldman a satisfactory purchase price for his business as then conducted, together with an assumption of his obligations under the lease. What was actually accomplished through Freed’s efforts in finding the proposed purchaser was that Feldman received a satisfactory price for his business and instead of an assumption of his obligation under the lease he received a full discharge therefrom and a bonus in addition. If, as appears from the record, this is what actually happened I think that the broker may be said to have more than performed the requirements of his employment.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
Guy, J., concurs with Bijur, J.
Judgment reversed.