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offense of obtaining money or property under false pretenses larceny. We think this objection was not well taken. The county treasurer was a mere custodian of the money of the county to be paid out only for legitimate purposes. While he would be protected in paying it out under a proper warrant, even if its purpose was to cheat and defraud the county, unless he was a party to the fraud or had knowledge of it, payment upon fraudulent warrants did not have the effect to transfer the title to the money to the persons who thus wrongfully obtained it, nor give them any right to the possession thereof. The warrant was a trick or fraudulent device for obtaining the money. It was as much a theft as it would have been had the defendant secretly, and without the knowledge or consent of the county treasurer, taken it from the safe. The defendant was not entitled to the possession thereof, either individually or in his official capacity.

It was early held under the common law that where the custodian of a quantity of wheat permitted a defendant to take the key to the storehouse and remove a quantity of wheat, upon his representation to the custodian that he had been sent by the owner to take the wheat, and the representation was false, and he subsequently disposed of the wheat, the defendant was guilty of larceny. Reg. v. Robins, 29 Eng. L. & Eq. 544. Judge O'Brien, in the late case of People v. Miller, 169 N. Y. 339-350, 62 N. E. 418, 421, 88 Am. St. Rep. 546, says:

"The offense of larceny at common law is established by proof on the part of the prosecution showing that the defendant obtained possession of the property by some trick, fraudulent device, or artifice, animo furandi, with the intention at the time of subsequently appropriating it to his own use. This proposition is well sustained by authority in this and other courts, both before and since the enactment of the Penal Code."

We have overlooked none of the objections and exceptions urged on behalf of the defendant for reversing the judgment. We think none of them would justify the granting of a new trial. A careful reading of the evidence convinces us that the jury were well warranted in finding the defendant guilty of the offense with which he was charged and that he was properly convicted.

The judgment should be affirmed. All concur, except ROBSON, J., who dissents.

KING V. KNOWLES.

(Supreme Court, Appellate Division, Second Department. November 22, 1907.)

1. NEW TRIAL-GROUNDS-FALSE ISSUE.

Where, in an action for broker's services, the proof showed plaintiff's employment, the rate of compensation, and that he secured a person willing and able to take the premises on defendant's terms, but a suggestion was permitted that defendant in his negotiations with the purchaser had made certain statements concerning restrictions on the property, which subsequent investigations proved untrue, of which there was neither pleading nor proof, and the jury were permitted to determine whether the written contract between defendant and the purchaser was binding as between plaintiff and defendant, plaintiff was entitled to a new trial on the rendition of a verdict for defendant.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, § 59.]

2. BROKERS-PERFORMANCE OF SERVICE-RIGHT TO COMMISSIONS.

It is not the duty or obligation of a broker to see that the vendor has a good title or that he enters into an enforceable contract; the broker's duty being performed when he has secured a purchaser ready, willing, and able to purchase on the vendor's conditions.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Brokers, § 77.]

3. SAME CONCLUSIVENESS OF CONTRACT OF SALE.

A written contract between a purchaser and vendor of real estate, in which the purchaser accepted all of the conditions named by the vendor, was conclusive in favor of the broker in an action for services, in the absence of evidence that the contract was not delivered, or had been modified by parol with the broker's knowledge.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Brokers, §§ 116120.]

Appeal from Special Term.

Action by William M. King against Benjamin H. Knowles. From an order setting aside a verdict in favor of defendant and granting a new trial, defendant appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, GAYNOR, RICH, and MILLER, JJ.

Henry Escher, Jr. (George F. Elliott, on the brief), for appellant. Jonas B. Weil, for respondent.

WOODWARD, J. It is evident that there was a false or immaterial issue intruded in this case, and the learned trial court, in a memorandum, gives reasons why the verdict of the jury was set aside, which, in our opinion, justify the action. The action was brought to recover commissions, alleged to have been earned by the plaintiff in securing a purchaser ready, willing, and able to purchase certain real estate in the borough of Brooklyn, which was held by the defendant under a contract for the purpose of sale. The evidence showed conclusively the employment of the plaintiff, and the rate of compensation was not seriously disputed. The evidence further showed that the plaintiff secured a party who was willing and able to take the premises at the terms named by the defendant, and that the parties met and entered into a written contract for the purchase and sale of the premises. There was no dispute in the evidence as to the validity or binding force of this contract; but a suggestion was permitted to creep in that the defendant, in his negotiations with the purchaser, had made certain statements in reference to restrictions upon the property which subsequent investigation proved not to be true, and the jury were permitted to determine whether this written contract was a binding contract as between the plaintiff and defendant. Obviously no such issue was presented by the pleadings or by the proof. No evidence was offered to show that the contract, concededly prepared by the defendant, was not a meeting of the minds of the parties involved in the purchase and sale; and the fact that the defendant was unable to give a satisfactory deed of the premises has nothing whatever to do with the case.

It is not the duty or obligation of an ordinary broker to see to it that the seller has a good title, or that he enters into an enforceable contract. His duty is done when he has brought a purchaser who

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is ready, willing, and able to purchase upon the conditions named by the seller, and when this is done his commissions are earned. The question here was not, therefore, whether the seller had made representations as to the property which were not true, but whether the plaintiff had performed his duties as a broker; and the written contract between the purchaser and seller, in which the former accepted all of the conditions named by the latter, is clearly conclusive, in the absence of some evidence tending to show that the contract was not delivered, or that it was in some manner modified by parol, with the knowledge of the plaintiff. It is certainly entitled to weight as against anything which appears in this case, and the learned justice presiding at the trial properly set aside the verdict and directed a new trial.

The order appealed from should be affirmed, with costs. All

concur.

SHEINDELMAN et al. v. COLYER et al.

(Supreme Court, Appellate Division, Second Department. November 22, 1907.) 1. VENDOR AND PURCHASER-CONSTRUCTION OF CONTRACT-QUANTITY OF LAND. A contract for the purchase of a tract of land, which was capable of actual visual determination, bounded the land, and stated that it contained about 80 acres. The price was $1,000 per acre, but the total purchase price was not mentioned; that being left to computation when a survey, provided for, should determine the acreage of the tract. The survey showed the area to be about 95 acres. Held, that the contract was for the purchase of all the land within the stated boundaries, and performance could not be refused by the vendee because the survey showed a greater acreage than that stated in the contract.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 93-95.]

2. GUARANTY-CONSTRUCTION OF CONTRACT-DEFAULT OF PRINCIPAL.

Under such circumstances, the assignee of the interest of the vendee under the contract, before the time set by it for the transfer of the land, having entered into a contract for the sale of the land, performance of which by such assignee was guaranteed by a third person, except in case the original vendor's contract should not be fulfilled with the assignee without the latter's fault, the guarantor was not relieved by the refusal of the assignee to perform because the survey showed a greater acreage than that stated in the original contract.

Appeal from Special Term, Kings County.

Action by Samuel Sheindelman and another against Minerva Colyer and Ernestus Gulick. Judgment for plaintiffs, and defendant Gulick appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, HOOKER, and MILLER, JJ.

Menasseh Miller, for appellant.

Herman S. Bachrach, for respondents.

HOOKER, J. On January 30, 1906, Nicolas Clements, as vendor, agreed to sell to Florence C. Smith, the assignor of the defendant Colyer, and Smith agreed to buy, a certain lot of land, with improvements thereon, which was described in the written contract as being on the

southerly side of Hempstead turnpike west of Lynbrook Road, "and being bounded on the east by land now or late of Kinsey, on the south by lands now or late of Kalb, and on the west by lands now or late of one Kiefer, and containing within said bounds about 80 acres, and having at least 1,900 feet on Hempstead turnpike; the said premises being now occupied by the original vendor." The price was $1,000 per acre, and nowhere in the contract was the total purchase price mentioned; that evidently being left to computation when it should be determined how many acres were in the tract of land. It was also provided that:

"The area of said farm shall be determined by a survey thereof to be made by Thomas V. Smith, C. E., and the expense of said survey shall be borne equally by the parties hereto."

Later, and before the time set for the transfer, the vendee, Smith, assigned her rights under this contract to the defendant Colyer, who thereafter entered into an agreement with Lena Rubin, the plaintiffs' assignor, to sell to her the same land, which in the agreement was similarly described. The price was stated to be $1,500 per acre, and nowhere in the contract was the total purchase price mentioned; the reading of the contract leaving it apparent that the total purchase price could not be computed until the exact acreage should be determined. The contract likewise contained a statement that the area of the farm was to be determined by a survey by Thomas V. Smith, C. E., and the expense thereof to be borne equally by the parties of the contract. To induce the vendee Rubin to enter into the contract, the defendant Gulick executed and delivered to her upon sufficient consideration a guaranty, in which it was provided that the defendant Gulick does "hereby guarantee the fulfillment of the within contract by Minerva Colyer, except in case the original vendor's contract shall not be fulfilled with the said Minerva Colyer; provided, however, such failure shall not be brought about, nor shall be, through the fault of the said Minerva Colyer, the vendor under this contract." The plaintiffs' assignor deposited $5,000 with the defendant Colyer as part of the purchase price of the premises, and, on the day mentioned in the contract when the deed should be passed, offered to perform; but title did not pass, owing to the inability of the defendant Colyer to convey title, for she had not as yet obtained her deed from the original vendor, Clements, the reason for which will appear later. This action is to recover from both defendants the sum of $5,000 so deposited, together with the expenses which the plaintiffs' assignor incurred in examining the title. The trial resulted in a verdict for the plaintiffs, and the defendant Gulick appeals.

The inspection of the contract of guaranty will disclose that the appellant was to be relieved of fulfillment on account of the fault of his principal, the defendant Colyer, and this brings us to an examination of the facts, that it may be determined whether the failure to close the title between Clements and Colyer, the vendee's assignee, was through the fault of Clements or Colyer. Pursuant to the contract, a survey was actually made of the farm, and it was found that the acreage was between 95 and 96, instead of “about 80." At the time mentioned in

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the contract for the delivery of the deed by Clements he was prepared to execute, but defendant Colyer refused on the ground that under the contract she was not compelled to take title to and pay for nearly 96 acres. It was conceded that the survey was accurate and that there were actually between 95 and 96 acres in the farm, which it will be remembered was described in the contract as being bounded by the lands of three adjoining owners. The land which was the subject of the contract was defined in extent and was capable of actual visual determination. It is apparent that no one was deceived in respect to the amount of the land which it was proposed to sell by the statement "containing within said bounds about 80 acres"; and we do not think that the insertion of this clause was indicative of any intention of the parties that either party should be relieved of the obligations of the contract if the survey thereafter provided to be made should disclose a substantial variation either way.

It is to be noted that there was no provision in the contract between Clements and Smith that in any event the purchase price should be no more than a stated sum, nor that either party should be relieved of the contract if the survey showed more than a certain number of acres. The cases cited by the appellant deal with situations where it was provided in the contract that the purchaser should have a given amount of land, or substantially such. That is by no means this case; for, as we construe the contract between Clements and Smith, it provided for the sale by Clements and the purchase by Smith of all of the land within the stated boundaries, and for a consideration of $1,000 per acre, the acreage to be determined by the survey therein provided for. It is apparent, therefore, that under the facts as stipulated upon the trial of this case the failure in the fulfillment of the contract between Clements and Smith, the original vendor's contract, was through the fault of the defendant Colyer.

Hence the appellant was not relieved of the terms of his guaranty, and the judgment in plaintiffs' favor must be affirmed, with costs. All concur, except HIRSCHBERG, P. J., not voting.

FALIHEE v. JOHN SIMMONS CO.

(Supreme Court, Appellate Division, First Department.

November 22, 1907.) 1. FRAUDS, STATUTE OF-CONTRACTS-EXECUTION-AUTHORITY OF AGENT. Defendant submitted an unsigned written estimate to supply plaintiff with certain plumbers' supplies for $7,736. Plaintiff told defendant's salesman he would accept the bid at $7,500. The salesman notified defendant's manager, who agreed by telephone to furnish the supplies for that sum. The salesman, at plaintiff's request, changed the figures and wrote at the bottom of the estimate: "The amount agreed $7,500 by H. W. Walton. Delivery to be made June 15, 1905." The salesman had no general authority to bind defendant on a contract. Held, that the writing was not a contract that would bind defendant, under the rule that a contract for the sale of goods for the price of more than $50 must be in writing and signed by the seller or his lawful agent. 2. PRINCIPAL AND AGENT-AUTHORITY.

Plaintiff requested defendant's salesman to reduce an estimated price for supplies. The salesman notified defendant's manager, who told