I would affirm the order dismissing the first alleged cause of action. This subtly contrived pleading is merely another example of an effort by a broker to make prospective purchasers pay a commission contracted to be paid by the seller but not earned. The plaintiff’s allegations give notice that the gravamen of the first cause of action is the alleged “arbitrary, capricious and deliberate conduct” of the defendants in their refusal ‘ ‘ to sign a written contract ’ ’ of purchase containing a provision for payment of commissions of $6,000 by the seller upon closing of title and in their refusal to consummate the purchase of the property; and the plaintiff alleges that “ by reason of defendant’s conduct, plaintiff herein failed to receive the brokerage commissions as agreed upon with the Seller of the subject property ” and that the plaintiff has been damaged in such sum. But, bearing in mind that no *577agreement was ever finalized and validly formulated for the purchase of the particular property by the defendants, they had a perfect right to refuse to sign a proposed written contract and to consummate the purchase, and therefore, their conduct in this connection was not arbitrary, capricious and unjustified; and, since the title was not closed, the plaintiff did not lose a commission of $6,000 because it never became entitled to the same.
The plaintiff, as a broker, may have a cause of action in quantum meruit against the defendants for services rendered pursuant to its alleged employment by them “for the purpose of locating and selecting a parcel of improved real estate within a certain area ” and for the performance of “ various services for and on behalf of the defendants herein in locating and selecting several parcels of improved real estate ”, but that is not the cause of action attempted to be pleaded here.
Assuming that, as alleged, the plaintiff was employed by defendants “for the purpose of locating and selecting” a particular type of parcel of real property in a certain locality, it does not appear that the defendants have in any way breached or repudiated any of the terms of such agreement. If, as alleged, the plaintiff on its part performed “ all the terms and conditions of the agreement ”, with the result that the defendants did select a parcel which was suitable to them, the performance by plaintiff entitles it only to recover the value of its services. There is no allegation here of any agreement with plaintiff obligating the defendants to close title to or even to buy a parcel located and selected by plaintiff; and it appears that the complaint was framed for the purpose of securing a recovery without proof of any such agreement, express or implied.
I would agree that, if the plaintiff was employed by defendants to procure the sale to them of a particular parcel upon specified terms, then, there could arise an implied agreement on the part of the defendants with the plaintiff to complete a purchase of the parcel on such terms, if arranged. The damages flowing from a breach of such an implied agreement could include the loss of commissions which the parties understood were to be paid by the seller. But the allegations of the complaint here are merely that the “plaintiff was employed by defendants for the purpose of locating and selecting a parcel of improved real estate within a certain area ”. If there were further terms or conditions of the employment, they are not alleged. It is elementary that a complaint in an action upon contract should set forth the contractual terms, express or *578implied, alleged to have been breached. Here, if the plaintiff relies upon an agreement, express or implied, between it ancl the defendants binding the defendants to complete a purchase of a particular parcel on specified terms, it is necessary that the agreement be alleged. To avoid uncertainty with respect to the terms of the contract relied upon by plaintiff, it may be given leave to serve an amended complaint.
The recoverable damages, upon a plaintiff establishing a breach of contract, are limited to the natural, probable consequences of the breach. If the defendants’ contractual obligation to the plaintiff here, as implied from the agreement of employment as alleged, was merely to pay for services rendered, then, the only possible breach of agreement chargeable against the defendants would be their failure to pay for such services. For any such breach, if alleged, the plaintiff’s recovery would be limited to a recovery in quantum meruit for the reasonable value of its services. (Mulhall v. Bradley & Currier Co., 50 App. Div. 179; Darling v. Moscowitz, 159 N. Y. S. 672.)
Where, as here, it is not alleged that the defendants, as prospective purchasers, employed plaintiff as broker to procure the sale to them of a particular parcel on stated terms, then, in the absence of an agreement by them to pay commissions, the plaintiff may not recover, for its services as broker, damages in amount of commissions which it would have earned as broker if the owner and defendants had entered into a contract of sale. (See Lewis v. Bush, 35 N. Y. S. 2d 448, 449. See, also, Moehlenpah v. Lefcort [Nolan, J.], 42 N. Y. S. 2d 280, affd. 266 App. Div. 786, mot. for lv. to app. den. 291 N. Y. 829.) The failure to earn and receive the commissions which would have been paid by the seller if the deal had closed is not an element of damage flowing from any breach of any contract alleged as between the parties to this action. (See Mulhall v. Bradley & Currier Co., supra; Darling v. Moscowitz, supra; Morgenthau-Seixas Co. v. Greene, 143 Misc. 456.)
Finally, the line of cases cited by plaintiff, of which those cited in the majority opinion are an example, are not controlling. As stated by Mr. Justice Fine at Special Term, “ [t]he oases cited by plaintiff are distinguishable, in that the terms which the purchasers in those cases employed the brokers to obtain were secured by the brokers. ’ ’ For instance, in Pease & Elliman v. Gladwin Realty Co. (216 App. Div. 421, 424), “ the evidence clearly established that the defendant agreed to take a lease of the property upon the terms agreed upon with the broker ” In Ackman v. Taylor (296 N. Y. 597), it appeared from the complaint that the defendant (prospective lessee) agreed upon *579the terms of the proposed letting and approved the lease as procured by the brokers. Also, in Westhill Exports v. Pope (12 N Y 2d 491, 496, 497), it was merely held that the purchaser could be liable for the payment of the commission where the broker had “ procured a seller on the terms and for the consideration, quantity and quality proposed by the purchaser * * * [and] the broker has performed what he was hired to do ’ \
Botein, P. J., Rabin and Bastow, JJ., concur with McNally, J.; Eager, J., dissents in opinion.
Order, entered on May 8, 1964, reversed, on the law, with $30 costs and disbursements to appellant and the motion denied.