1 Brown v. Boorman, 11 CI. & Finn. 1, 44.
2 Fairlie v. Fenton, Law R. 5 Exch. 169 (1870).
3 Baring v. Corrie, 2 B. & AI. 148.
4 Keys v. Johnson, 68 Penn. St. 42 (1871); Glentworth v. Luther, 21 Barb. 45.
5 Heinrich v. Korn, 4 Daly, 74 (1871); Cook v. Kroemeke, lb. 268. See also Tombs v. Alexander, 101 Mass. 255 (1869); Drury v. Newman, 99 Mass. 256.
6 Hamond v. Holiday, 1 C. & P. 384.
7 White v. Chapman, 1 Stark. 113; Denew v. Daverell, 3 Camp. 451. In England an unlicensed broker, though he cannot sue for his commission, is entitled to recover money, which, by the usage of the share market, he has been obliged to pay to the seller as the price of the shares. Smith v. Lindo, 5 C. B. (n. s.) 587 (1858); s. c. 4 C. B. (x. s.) 395.
8 The principal cannot, while the negotiation is pending, take it into his own hands and refuse to pay the broker. Chilton v. Butler, 1 E. D. Smith, 150; Keys v. Johnson, 69 Penn. St. 42 (1871); Hanford v. Shapter, 4 Daly, 243 (1872).
9 Read v. Rann, 10 B. & C. 438; Broad v. Thomas, 7 Bing. 99; s. c. 4 Moo. & P. 732; Dalton v. Irvin, 4 C. & P. 289.
§ 429. Primarily, a broker is the agent of the person who employs him, but as soon as he negotiates with any person, as vendee, he becomes also the agent of the latter, for the purpose of receiving and transmitting propositions. So, also, he is the agent of both parties, for the purpose of making the memorandum required by the statute of frauds. The practice of brokers is to keep books, in which they enter the terms of any contract, which they negotiate, and the names of the parties; they then deliver to the buyer a note of such entry, which is called a bought note, and a similar note to the seller, called a sold note, signed in their own name;1 and either the entry in the book, or the bought and sold notes, if signed by the broker, would be a sufficient memorandum within the statute of frauds, unless they either of them omit sufficiently to state the terms, or unless they disagree with each other.2 But if the bought and sold notes do not correspond with each other, or with the entry in the broker's books, the memorandum would not suffice, if the mistake occasioned any injury.3 If the broker be only employed to arrange preliminaries and bring the parties together, and the contract be made by the parties themselves, he would not be an agent so as to bind them by his entry in his books.4
1 Wilkinson v. Martin, 8 C. & P. 1; Murray v. Currie, 7 C. & P. 584; Green v. Bartlett, 14 C. B. (n. s.) 681 (I863). See § 259; Durkee v. Vermont Cent. R. R. Co., 29 Vt. 127 (1856); Vreeland v. Vetterlein, 4 Vroom, 247; Shepherd v. Hedden, 5 Dutch. 334; Cook v. Fiske, 12 Gray, 491; Tyler v. Parr, 52 Me. 249 (1873); Budd v. Zoller, lb. 238; Carpenter v. Rynders, lb. 278. As to the effect of a usage, not known to the principal, allowing the broker a commission for bringing parties into negotiation, though no sale be effected through his agency, see Loud v. Hall, 106 Mass. 404 (1871). As to whom of two brokers claiming a commission for the same transaction is entitled to the same, see Maracelle v. Odell, 3 Daly, 123; Dryer v. Ranch, lb. 434; Glenn v. Davidson, 37 Md. 365 (1872).
2 Knapp v. Wallace, 41 N. Y. 477 (1869). And see Doty v. Miller, 43 Barb. 529; Barnard v. Monnot, 3 Keyes, 203; Lyon v. Mitchell, 36 N. Y. 235; Moses v. Bierling, 31 N. Y. 462; Jones v. Adler, 34 Md. 440 (1871); Cook v. Kroemeke, 4 Daly, 268.
3 Redfield v. Tegg, 38 N. Y. 212 (1868). Upon an employment to procure a purchaser of property at a certain price, the broker does not earn his commission unless he procures a purchaser who is willing or offers to buy at that price. It is not sufficient that he was the means of bringing the knowledge of the fact that it was for sale at a certain price to the party who afterwards buys it for that price, but it must be through his instrumentality that the purchaser is brought to give that sum for it;' which may fairly be presumed, where nothing appears but the fact that he brought the vendor and purchaser together, and that the latter gave the price asked for it. Wylie v. The Marine National Bank, N. Y. Common Pleas, Feb. T. 1872. See Lincoln v. McClatchie, 36 Conn. 136; Schwartze v. Yearly, 31 Md. 270; Harris v. Burtnett, 2 Daly, 189.
§ 430. The broker, being invested with a personal trust, cannot delegate it to another, although the other be a sub-agent or clerk, unless with the express or implied consent of his principal to his so doing.5 So, also, he cannot, ordinarily, sell the goods of his principal in his own name, unless specially authorized; and if he do, his principal will have the same rights and remedies against the purchaser, and incur the same liabilities,6 as if his name had been disclosed. This rule is adopted, not only upon the ground that, having exceeded his authority, the principal is not bound, for the innocent buyer might nevertheless be injured thereby,1 but also that, as he has neither the possession of the goods nor the indicia of possession, the vendee cannot be deceived into a belief that he is the principal, or is acting otherwise than as a broker.2 But there are some exceptions to this rule, created by usage; as in the cases of policies of insurance, which are commonly made in the name of the policy broker, and which he is then enabled to sue upon.3 Unless, however, he act in the capacity of factor, as well as of broker, he cannot, unless in the excepted cases created by usage, contract in his own name.4 He may, of course, be empowered to sell in his own name, which will, of itself, constitute him in so far a factor; and an authority to sell in his own name may be implied from a previous course of dealing between the parties, - but this is a question for a jury.6 But if a broker enter into a contract for an undisclosed principal, the latter may sue thereon in his own name; 6 and this rule obtains although there be a rule of the exchange, on which the contract is made, declaring that a contract made for an undisclosed principal shall be regarded as the contract of the broker solely,7 and although this rule be known to the principal.8