I think that the Special Term was right in overruling the demurrer that the complaint did not state facts sufficient to constitute a cause of action. The plaintiff complains that he is a real estate broker employed by the owners of realty to effect a sale of it, upon agreement for 5 per cent commission; that he “ Usted ” the property “ for sale ” with the defendant, a real estate broker, accompanied by a letter to the defendant, dated December 14, 1915, wherein plaintiff wrote that he was the exclusive agent, that he would receive any offer that the defendant would make and put it before the owners, and added: “ In case you can effect a sale, *613will allow you 2^% commission; ” that thereupon the defendant wrote on December 15th, in answer: “We beg to acknowledge receipt of yours of the 14th instant, relative to the block between Thompson and Nott Aves, and Bawson and Hill Streets, Long Island City, and note price of $150,000. We beg to assure you that we will use our best efforts to dispose of this property, and will be glad to submit any offers that we may receive.” Plaintiff further complains that defendant, while said property was listed with it under the terms of said letter of December 14th, procured a purchaser, submitted his offer to the owners of the property with the result of a sale, and that the owners thereupon paid 5 per cent commission to the defendant. He sues to recover the excess of the 5 per cent over the 2% per cent.
I think that we can spell out from the pleading a charge that the defendant agreed with the plaintiff that the defendant would strive to effect a sale of the property and that defendant would submit any offer that it might receive therefor to the plaintiff, on the consideration that the plaintiff would pay the defendant 2^ per cent commission in the event of a sale, but that the defendant, in violation of its agreement, submitted such an offer to the owners and as the result has secured 5 per cent commission therefor. I think that the plaintiff, beyond the peril of this demurrer, has pleaded a suit in equity upon a quasi or constructive contract, sometimes called an implied contract. In the language of Kent, J., in Neilson v. Blight (1 Johns. Cas. 205, 210): “ The law will infer a promise by the defendant to pay the money, because in justice and good faith he was bound to do so, and gave the plaintiff reason to expect it.”
The interlocutory judgment is affirmed, with costs, with leave to the defendant to plead over within twenty days upon payment of costs.
Stapleton and Blackmar, JJ., concurred; Thomas and Putnam, JJ., dissented.
Interlocutory judgment affirmed, with costs, with leave to defendant to plead over within twenty days on payment of costs.