The case presented by this record is not the usual one of an agent who has earned an agreed commission by procuring a willing purchaser, but rather of one whose recovery is for damages sustained by reason of the refusal of the owner to fulfill such of his promises as constituted conditions precedent to the securing of a purchaser. The propositions of fact which the jury must necessarily have found in plaintiffs’ favor in order to reach the verdict rendered are briefly that the defendant agreed to permit the plaintiffs to sell its mills and mining property; to allow them a reasonable time in which to make' the sale, to do such acts and execute such papers as should be reasonably necessary for that purpose, to abstain from other negotiations in the mean time; upon the faith of which plaintiff expended much of time and money, but without result, because the defendant refused to execute the paper which was essential to the incorporation under the English law, a fact well known to the defendant when consent was given to the efforts which plaintiffs made to sell the property. The appellant makes the point, among others, that such findings are contrary to the evidence and the weight of evidence, and therefore the judgment based thereon should be reversed. But its position is not well taken. The evidence upon each proposition is abundantly sufficient to support the disposition made of it, not excepting the one which, in effect, declares that defendant and its agent, who owned all its stock, knew, in advance of the substantial expenditure of money made by the plaintiffs for the purpose of promoting the formation of a corporation under the English law to become the owner of this property, that one of the preliminary steps required by that law would be the execution and filing of a written contract of sale. The appellant now insists, as it did upon the trial, that the contract alleged in the complaint is void under the statute of frauds. As this defense is neither presented by the averments of the complaint nor pleaded in the answer, it cannot now be made available to the defendant. Wells v. Monihan, 129 N. Y. 161, 29 N. E. 232; Crane v. Powell, 139 N. Y. 379, 34 N. E. 911. If the pleadings presented the question fairly for consideration, we should feel constrained to hold that the statute is not applicable. This action is not prosecuted by the plaintiffs on the theory that defendant made a valid contract with them for the sale of lands to such a purchaser as the plaintiffs might select, but rather that defendant made the plaintiffs its agents, and persuaded them to undertake the task of selling property as to which prior, and not unfrequent, efforts had resulted fruitlessly; that defendant had fixed the terms of the agency, understood fully the character of the work to be undertaken, appreciated that it involved a substantial expenditure of money as well as skillful labor, and knew, long before its refusal to do the act essential to further progress in the scheme upon which they had embarked, that plaintiffs were acting in reliance upon its promises; and when it so acted as to terminate, in effect, the agency thus created, the law enjoined upon it the legal duty of compensating the agents for the injury sustained. This position of the plaintiffs *336is so well grounded in principle as to require neither discussion nor the citation of authority.
It is also insisted that the court erred in refusing to charge two requests made by defendant’s counsel: First. “If the jury find that the plaintiffs are entitled to damages for breach of contract, they can only take into consideration actual damages.” If that request be considered separately from the one which follows it, there would seem to be no justification for its refusal, other than that the court had already charged the jury upon that subject in language which must have met the approval of defendant’s counsel, for no exceptions were taken to the charge as made in respect to the subject of damages. Of course, the plaintiffs were only entitled to recover compensation commensurate with their loss or" injury, and the request, standing alone, seems to imply only that. But, considered in connection with the request following,— both of which are now treated as one request in the appellant’s brief,—we have an explanation of the meaning intended. The further request was that the court instruct the jury not to take into “consideration possible profits or commissions which might have accrued, which are too remote and indefinite to be regarded.” It thus appears that the point of the request was that the jury should be instructed that, in determining upon the amount of damages which should be awarded to the plaintiffs, they should not take into account the loss of commissions. If such were the rule, it would, in a case like this, leave no room for the jury to make an award to plaintiffs except for damages sustained by reason of the expenditure of money, and prevent them from having regard for the time taken and skill employed in endeavoring to bring about the result which, was the desire of both parties. The contract between these parties provided that plaintiffs should receive $50,000 if they should succeed in getting up an English company, and selling the property, to it for the price fixed upon by the defendant. It also appears that the necessary expenses of- the plaintiffs in the undertaking would equal the sum of $5,000, and that they had actually paid out in one item the sum of $500, which payment was made necessary in the carrying out of the plan undertaken. Evidence was also produced by the plaintiffs tending to show that, had they been permitted, they would have succeeded in getting up an English company to which the mines would have been sold. The plaintiff Mackey was not without previous experience and success in similar transactions, and it was made to appear that he had interested influential people in the scheme, who had agreed to become directors in the new company; so that there was evidence from which the jury might have inferred that their undertaking would have proved successful but for the defendant’s conduct in refusing to take the necessary steps in that direction, and, instead, selling the mines to other parties. Such being the case, it would seem to be within the rule as laid down in Wakeman v. Manufacturing Co., 101 N. Y. 205, 4 N. E. 264, in which the court considered what might be taken into consideration in estimating the damages for the loss of an agency. It said:
*337“The damages must he reasonably certain, and such only as actually follow, or may follow, from the breach of the contract. * * * They are nearly always involved in some uncertainty and contingency. Usually they are worked out in the future, and they can be determined only approximately, upon reasonable conjectures and probable estimates.”
With evidence tending to show, as we have already observed, that a sale would have probably resulted had plaintiffs been permitted to have continued in their efforts along the lines agreed on between them and the defendant, the court could not have properly instructed the jury not to take into consideration, in fixing the damages, the matter of compensation to the plaintiffs for services rendered. Such we deem to have been the purpose of the two requests, and their denial, therefore, does not call for a reversal. The judgment should be affirmed, with costs.
FOLLETT, J., concurs.