Sec. 193. Terms Of Principal

And, of course, the broker must procure a loan as applied for, that is, on his principal's terms.34 Where, for instance, the broker was employed to obtain a loan of not less than $220,000, but failed to secure anything better than $210,000, and then abandoned the matter, he is not entitled to commissions when his principal subsequently takes a loan of $200,000 from the same party.35

And so, a broker employed to procure a loan for three years is not entitled to commissions for procuring a loan which was not accepted because subject to the lender's right to enforce payment on sixty days' notice in case of the passage of a law changing the rate of taxation of mortgages.36 Nor where the lender insists on a "gold clause" in the mortgage.37

And where the principal authorizes the broker to procure a loan so that he may pay off certain encumbrances on his property and the broker obtains an offer of a loan on the property, provided all encumbrances are paid off, and no part of the loan is to be advanced until that is done, no commissions accrue.38

30 See Ch. Ill supra.

31 See Ch. II supra.

32 See Forms 40-43 infra., Ch. XL.

33 Fitzpatrlck v. Gilson, 176 Mass. 481 (1900). 34 See Ch. XII supra.

35 Stone v. Plaut, 96 N. T. Suppl. 1030 (1905).

36 Kronenberger v. Teschemacher, 52 Misc. 130 (N. Y. 1907).

37 Caston v. Quimby, 178 Mass. 153 (1901); Peabody v. Dewey, 153 111. C57 (1894).

But where the broker secures a loan, and the owner refuses to take same because he feels that the commissions claimed by the broker are excessive, he cannot afterwards justify his refusal by claiming that a new element had been introduced into the transaction by the acceptance of the loan on condition that the rules of the accepting company be complied with and the loan accepted within ten days, and that the procurement of the loan on this condition was not a fulfillment by the broker of his contract of employment.39

Sec. 194. Recovery On Breach By Principal.40

Where the principal refuses to accept the loan after the broker procures it upon the authorized terms, the broker is entitled to his commissions.41 When the broker, at the request of his principal, "has secured a lender ready, willing and able to make the loan on a good title the broker is entitled to his commission when, after that is done, the borrower, without any excuse, declines to complete the loan which he had engaged the broker to obtain for him and prevents the loan from being made by making the loan elsewhere." 42

When the broker secures the loan, he need not tender the money to his principal. When the money is secured and the principal is notified thereof, it becomes his duty to act.43 Where defendant agreed to pay a broker a certain amount for procuring a loan, which the defendant refused thereafter to accept, the defendant may prove that the broker had agreed to pay the lender one-half of the commission, and such one-half must be deducted in arriving at a verdict for the broker on the principle that a recovery for breach of contract must be confined to the actual loss sustained. The broker cannot derive a greater advantage from a breach than from a performance.44

38 West v. Stoeckel, 10 Am. Law Rec. 308 (CInn. 1882).

39 Hotchkiss v. Kuchler, 80 App. Div. 265 (N. Y. 1903). See also Sec. 170 supra as to right of a person to change his ground or reason.

40 See Sec. 185 supra.

41 Stein'metz v Paneoast, 17 Phila. 185 (1884); Hackmann v. Gutweller, 66 Mo. App. 240 (1890).

42 Masterson v. Knights, 135 111. App. 548 (1907), (citing Swigart v. Hawley, 140 111. 180; Springer v. Orr. 82 111. App. 558).

43 Telford v. Brlnkerhoff, 45 111. App. 586 (1892).