Waterman v. Boltinghouse
JAMES A. WATERMAN v. F. M. BOLTINGHOUSE
Headnotes
Summary
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Opinion of the Court
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Thornton, J.
This is an action by plaintiff to recover commissions for an alleged sale of land. He never produced a purchaser ready and willing to buy on the terms of his employer, the defendant. He cannot, therefore, recover. (Dolan v. Scanlan, 57 Cal. 261 ; Moses v. Bierling, 31 N. Y. 462 ; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378 ; 22 Am. Rep. 441 .)
Here the plaintiff had the exclusive right to sell for a term ending January 1, 1889, and the defendant, during this period, himself effected a sale. Though the plaintiff had the right to sell, to the exclusion of his employer, still he cannot recover his commissions unless he has produced a purchaser ready and willing to buy as above stated. This is expressly held, and correctly held, in Moses v. Bierling, supra, which is a case similar to this.
The plaintiff argues this case as if it was a suit to recover damages for defendant’s breach of contract. The complaint does not set forth any such action, but one to recover the compensation agreed to be paid on a sale.
There is no error.
Judgment affirmed.
McFarland, J., and Sharpstein, J., concurred.
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