Schiele

Action to recover brokers’ commissions for negotiating a sale of defendant’s land.

Phelps & Smith were the brokers, and plaintiff, who succeeded to their claim, had judgment. Defendant appeals from the judgment and the order denying his motion for a new trial.

*147 The questions presented by this appeal for decision arise out of the following state of facts: On February 14, 1887, defendant executed to Phelps & Smith the following contract of employment: —

Phelps & Smith, who knew nothing at the time about the condition of the title of said property, accepted the employment to sell on the terms stated in the contract, and on March 10,1887, found a purchaser for said property in one Cadwallader on the terms expressed in the following receipt:—

*148 They then introduced Cadwallader to defendant as the purchaser of said property, and, after informing him of the terms of the sale, delivered to him a copy of the foregoing receipt, which was agreed to and ratified by the defendant, and Cadwallader accepted by him as the purchaser thereof on said terms.

The deposit of five thousand dollars was not in gold coin, as stated in the receipt, but was, by agreement of all parties, a bank…