Edward T. Carpenter and Ernest E. Carpenter, Respondents, v. Atlas Improvement Company, Appellant

Edward T. Carpenter and Ernest E. Carpenter, Respondents, v. Atlas Improvement Company, Appellant. Second Department, January 24, 1908. Principal and agent — broker’s action for commissions—failure to ' • perform. ' A broker who has contracted to sell the real estate owned by the defendant at-a certain locality must show, performance of the entire contract in order to be entitled to commissions. If unable to find purchasers for more than two por- , tions of the entire property, lie is not entitled to recover commissions although the. owner acting independently thereafter sold those portions to the purchaser found by the plaintiff, in .the absence of any evidence showing that the original entire contract was modified. ' Appeal by. the defendant, the Atlas Improvement Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of .the county of Westchester on' the 31st day of July, 1907, upon the report of a referee. Herman Aaron, for the. appellant. II. T. Dykrnan,' for the respondents.. [MAJORITY — Per Curiam :] Per Curiam : The plaintiffs were employed to sell the' real estate owned by the defendant at' White Plains for • $70,000 at the usual' commissions. Ro modification was made of the contract of employment, nor was there any evidence from which this co,urt. could find that the com' tract was changed by implication. The plaintiffs were to sell the entire parcel, but were able to find purchasers for only two portions of the whole; after the lapse of a reasonable time, the defendant, independently of the plaintiffs, sold the • two portion's to the 'purchasers the plaintiffs had found; the balance had not been sold when this action was begun. The plaintiffs have had judgment for commissions on the two portions sold. We think the learned referee fell into error by holding that the contract of employment was changed by implication. The familiar principle of law that before the plaintiffs can recover on such a contract as this they must show performance of the entire contract is applicable to the facts presented by the record here, and the judgment must be reversed for want of evidence to sustain it, and a new trial granted, costs to abide the event. Woodward, Jerks, Hooker, G-aynor and Miller, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event.