WILLIAM A. TORREY & Co. agst. THORNE, MCFARLANE & Co. Rules as to commissions of a broker. He cannot recover for them unless his agency was the procuring cause of the sale. The owners of the goods may sell them in a foreign port on a different contract and for another price to the same parties named by the broker, and not become liable to him for commissions, where the supposed contract he negotiated was unauthorized. If the broker acted in good faith, and communicated all his information to the sellers, he is not liable to them for deficiency between the supposed and the ultimate sale. E. L. FANCHER, Official Arbitrator. The plaintiff, WILLIAM A. TORREY, doing business under the firm name of W. A. TORREY & Co., claims to recover of the defendants $2,451.43, for commissions on certain cable orders for 11,800 sides of leather, which orders purported to be for and on account of certain purchases in Sweden. At the first interview, as the plaintiff states, the question of acceptance came up, but the prices were not satisfactory, “and, finally, it was understood that I should write." "During this conversation," plaintiff testified, "we differed in regard to the prices. Then the directions had gone over that the goods (orders') could not be filled at those prices." This was previous to September 17, and in those previous interviews it was agreed, as the plaintiff testified, he "was to have five per cent. commission if the orders were filled." On the 17th September, plaintiff received another cable despatch. It was dated on that day, and read, "Fill immediately orders, lowest prices, cabling." This the plaintiff took to Mr. THORNE, one of the defendants, who said "he would accept the orders on the basis of certain prices," already stated. Plaintiff then telegraphed his correspondent, Mr. SCHLOSS, and on the 18th wrote him also. A cable was returned by SCHLOSS on the 19th as follows: "Fill orders-answer." The plaintiff's cable to SCHLOSS interpreted, reads thus: "Order received and accepted. Overweight, 234; middle, 224; light weights, 214. Three months on bills of lading. Answer." When these telegrams were shown to the defendant, he said "he would accept all the orders received up to that time at those prices." The further testimony shows that the plaintiff's correspondent, MORITZ SCHLOSs, assumed an authority to order the goods at the prices above named, which, in fact, had not been given him by the Swedish merchants. The Swedish merchants objected to the prices; and when the goods had arrived, refused to receive them at those prices. The orders given by the Swedish merchants were at prices considerably less than those named by the defendants, and for which they had shipped the goods. The defendants shipped the leather in good faith, and in reliance on the cable despatch of SCHLOSS, that the Swedish merchants had ordered the same in the quantities and at the prices given. The defendants were not apprised of the mistake or misunderstanding as to the prices until the leather had been actually shipped. When the goods had been shipped and were on the way to Sweden, they could not be recalled; and when they had arrived at their destination, and the Swedish merchants refused to receive them at the prices of the defendants, the supposed contract for the sale of them, on which it was agreed the plaintiff was to be paid a commission, was at an end. That the defendants afterwards chose to sell the goods in Sweden, at such prices as could be obtained, and that the purchasers were the same merchants whose orders it was supposed had been given at different rates, does not show that the contracts were made through the plaintiff's agency, as the procuring cause of the contracts. The defendants had the choice of an alternative-to sell the goods in Sweden, at what prices could be obtained, or to freight them back to New-York, at much expense and delay. As I understand the law, a broker cannot recover commissions unless he shows that his agency was the procuring cause of the sale. (BRIGGS VS. ROWE, 4 Keyes, 424; CHILTON vs. BUTLER, 1 E. D. Smith, 150; LUDLOW vs. CARMAN, 2 Hilt. 107; CUSHMAN vs. Gori, 1 Hilt. 356; Jacobs vs. Kolff, 2 Hilt. 133; BROAD vs. THOMAs, 7 Bing. 99; READE vs. RANN, 10 Barn. & Cress. 438.) It cannot be said that the plaintiff influenced the contracts that were eventually made. The defendants, while naming their prices to the plaintiff, expressly refused to sell the goods on such terms as were at last made. The circumstance that induced the defendants to sell the goods to the Swedish merchants at the prices finally accepted, was the fact that their goods were beyond the seas and could not be brought back, except at much expense of freight and insurance. The contracts which the plaintiff supposed he had been instrumental in negotiating, were not contracts at all. The terms of them were refused by the Swedish merchants, and the supposed contracts were not made or accepted. The contracts which were finally made and carried out, were negotiated without the agency of the plaintiff. He was not the efficient agent in those contracts. (MCCLAVE US. PAINE, 49 N. Y. 563.) This is not a case where the defendants contracted with parties introduced by the broker, in fraud of the broker's rights, or with a view to deprive him of his earned commissions. Nor did the defendants prevent the consummation of the contracts, in respect of which, it was agreed the plaintiff should be paid a commission. The plaintiff never produced a party who was willing to make a purchase of the leather at a satisfactory price. Until he does so, a broker is not entitled to commissions. (MOSES vs. BIERLING, 31 N. Y. 462, and cases cited.) There are cases where a broker has been held to be entitled to his commissions when he has introduced a purchaser, and the introduc tion has led to the sale. (49 N. Y. 562.) But the facts of the case under consideration are of different character from the facts of the cases referred to. Had the plaintiff proposed a sale to the Swedish merchants on the terms the defendants were, after the goods had been shipped, compelled to accede to, the defendants would have rejected such proposal, as the testimony in this case plainly shows. In the absence of fraud and of proof of any act of the seller preventing the broker from selling at a specified price, the broker cannot recover commission upon a sale made at a different price which he was not authorized to make, although he introduced to the seller the person who made the purchase. (SATTERTHWAITE US. VREELAND, 3 Iun, 152.) The authorities are to the effect that a broker, before he is entitled to commissions, must find a purchaser at the price for which he is authorized to sell, when specific prices have been fixed. (3 Hun, 154, and cases cited.) I think there should be an award in favor of the defendants, upon the plaintiff's alleged claim for commissions. As to the counter-claim of the defendants for $5,797 damages, being the amount of the loss sustained by them, from not realizing for the goods the prices which they supposed they had been sold for, I do not think the plaintiff is liable for such loss. It does not appear that he made any representation that he did not believe to be true, or that he was in any fault in the transaction. He was, himself, deceived by the telegrams of SCHLOSS, and appears to have acted in good faith in exhibiting to the defendants all the cable messages, letters and information in his possession. An award should be made denying the right of defendants to recover on the counter-claim; and denying the right of the plaintiff to recover on his claim for commissions. March 11, 1880. ROLL OF MEMBERS OF THE CHAMBER OF COMMERCE OF THE STATE OF NEW-YORK, ALPHABETICALLY ARRANGED, WITH DATES OF ELECTION, AND THEIR PLACE OF BUSINESS ON THE 30TH OF APRIL, 1880. 4, Babcock, David S.,.......... 177 West-street. 1, Babcock, Samuel D.,........ 50 Wall-street. 1875, November 4, Bache, Sigmund J.,.... 1876, May 1877, June 1852, June 1865, October 4, Baker, George F.,...... Place of Business. ... 56 Maiden Lane. 5, Baldwin, Christopher C.,..... 5, Ball, Thomas P., 6, Barbour, Thomas,. 1, Barling, Henry A.,.... 27, Barnes, Alfred S.,. 3, Barnes, Demas,.. 6, Barnes, J. Sanford,. 5, Barr, Thomas T.,... 1874, December 3, Barron, James S.,...... 1825, September 6, Barstow, Caleb,.. .... " 116 Reade-street. 134 Church-street. 46 South-street. 113 William-street. 21 Park Row. 30 Pine-street. 107 Front-street. 141 Chambers-street. 43 New-street. 75 Front-street. 54 Wall-street. 142 Pearl-street. 7, Blakeman, Birdseye,........ 138 Grand-street. 119 Duane-street. 25 Nassau-street. 113 Water-street. 107 New Church-street. 28 Reade-street, 65 Worth-street. 71 West-street. 3 William-street. 1215 Pearl-street. 72 Beaver-street. 1875, November 4, Brinckerhoff, Elbert A.,..... 109 Duane-street. 1874, December 3, Brown, Waldron P.,........ 69 Wall-street. 1, Browning, Edward F.,....... 502 Broadway. 1879, May |