Where a broker is employed to sell real estate he is the agent of the vendor. Gough v. Loomis, 123 Iowa, 642, 99 N. W. 295; Earp v. Cummins, 54 Pa. St. 394. If the vendor secretly pays a commission to the purchaser's broker, the purchaser has a right of action against the vendor to recover the amount thereof. Grant v. Gold Ex. Syn. 1 Q. B. (Eng.) 233, 69 L. J. Q. B. 150, 82 L. T. R. N. S. 5, 48 Weekly Rep. 280. See Sec. 401.

Where, through the misrepresentation of the vendor, innocently repeated by the broker to the prospective purchaser, and the falsity of which, being discovered, defeated the sale, the broker was held not entitled to his commission, for had it not been for the misrepresentation the prospective purchaser would not have entered into the agreement. Crockett v. Grayson, 98 Va. 354, 36 S. E. 477. Contra, Goodman v. Hess, 107 N. Y. S. 112, 56 Misc. 482. Where it appears that a real estate agent employed to sell land had acted in similar transactions for the vendor, that after making the sale the agent was active in assisting the vendee's agent in clearing up some defects in the title, that he filled up a deed and carried it to the vendor to sign, and then took it away, without objection on the part of the vendor, delivered it to the vendee's agent, and received the purchase money, which he appropriated to his own use, and the vendor subsequently admitted to disinterested persons that she had authorized the agent to collect the money, the loss thereof must fall on the vendor, under whose authority the agent acted. Frank v. Levy, 10 Ohio Cir. Ct. R. 554. Compare Rhode v. Marquis, 135 Mich. 48, 97 N. W. 53. Where a broker acts openly and himself buys the property, the vendor accepting him as such, he is entitled to recover commissions for the sale, upon clear proof that such was the understanding of the vendor at the time of the sale. Grant v. Hardy, 33 Wis. 668. Compare Secs. 389, 389a.

A real estate agent employed to buy certain property at a certain price, does not forfeit the commission which the purchaser agreed to pay him, because he secured another commission from the vendor after the vendor had accepted the terms offered. Jones v. Henry, 36 N. Y. S. 483, 15 Misc. 151. A contract to pay real estate agents commissions for their services in endeavoring to effect a sale, entitles the agents to commissions if they produce a purchaser to whom the vendor in fact sells. Bowe v. Gage, 127 Wis. 245, 106 N. W. 1074, 115 Am. St. R. 1010. An innocent vendor can not be sued in tort for the fraud of his agent in effecting a sale; in such case the vendee may rescind the contract and reclaim the money paid, and if not repaid, may sue the vendor in assumpsit for it, or he may sue the agent for the deceit. Kennedy v. McKay, 43 N. J. L. 288.

Where a broker procured a purchaser for the land sold by taking another piece of land for a part of the price, and these terms were accepted by the vendor, the transaction was a sale, and entitled the broker to the performance of the vendor's contract to allow him all over a specified amount that he could get for the land. Ullman v. Land, 37 Tex. Civ. App. 422, 84 S. W. 294; Thornton v. Woody (Tex. Civ. App. '93), 24 S. W. 331. See also Sees. 121, 164. A purchaser contracted to buy land and agreed to pay one-third cash; the sale was not made. Held, that the broker, in order to recover his commissions, was not required to prove that the purchaser was of such financial responsibility that his notes for the balance would have been good, irrespective of a vendor's lien, the contract employing the broker not stipulating that the purchaser should have such financial responsibility. Clark v. Wilson, 41 Tex. Civ. App. 450, 91 S. W. 627. A vendor may, if he is doubtful of the proposed vendee's ability to carry out his contract of purchase, accept the contract conditionally, and agree to sell, provided the purchaser proves able to perform its condition. Flynn v. Jordal, 124 Iowa, 457, 100 N. W. 326. A broker for a purchaser of real estate can not call upon his employer to go to the place of business of the vendor, and there make the contract or negotiate for its terms. Logan v. McMullen, 4 Cal. App. 154, 87 P. 285.