Samuel A. Morrison, Respondent, v. Fritz Leopold Schmidt, Jr., Appellant

Samuel A. Morrison, Respondent, v. Fritz Leopold Schmidt, Jr., Appellant. A broker employed to sell an interest in land is presumed to accept, as the subject-matter for negotiation, the quantity of title which his principal gives him. Reliance on representations though necessary in tort actions is not essential to be averred in such actions of contract. The terms of the contract itself import assent and materiality. Hence, plaintiff, suing for commissions, need not plead that he relied on the principal’s title as offered for negotiation, and need not negative the possibility that he had discovered his principal’s error. The averment that he “ procured a purchaser for the said interest ” sufficiently alleges performance. (Morton v. Petit, 133 App. Div. 377.) The word “ procured ” means not merely to initiate a transaction, but to bring it about. Order unanimously affirmed, with costs. [MAJORITY] Present — Rich, Putnam, Blaekmar, Kelly and Jayeox, JJ.