Where the broker is given a net sale price, and is to retain for his compensation all he may secure in excess of such net price, he is not, of course, entitled to compensation if he brings about a sale for a price only equal to or less than the net price. Thus, where the vendor agrees to take a stated amount "net," all above such amount to belong to the broker for his commission, the broker can claim no commission from the vendor where he procured a purchaser for the net amount only.10
On the other hand, he may legally claim all he secures in excess of such net price. "When lands are placed in the hands of a broker for sale at a net price to the owner, with the understanding that his commission or compensation depends entirely upon what he may be able to get for the land over and above the net price to the owner, he is entitled to the excess for which he sells." 11
10 Wolverton v. Tuttle, 94 Pac. 963 (Ore. 1908). See also Sec. 232 infra. 11 Jeffries v. Bobbins, 66 Kans. 436 (1903).
In other words, where the broker is to receive for his commission all in excess of a fixed price, he can claim commissions only in the event he procures a purchaser at a price in excess of the fixed amount; the excess being the measure of his commission.12
Where the broker is to get all or a part of all above a certain price per acre or a certain price in gross, the amount of the mortgage on the property purchased should be considered a part of the price paid when arriving at the net amount received by the seller, and upon which the commissions are to be computed, at least it has been so held where nothing was said about any mortgage in the written employment of the broker.13
When the broker is to sell for a net price and keep the excess and secures a purchaser at a price in excess of the net price, and the owner sells to the purchaser, knowing him to be the broker's client, the owner is liable to the broker for a commission equal to the difference between the net price and the price the purchaser was ready, willing and able to pay to the agent for the property.14
If the broker's purchaser to whom the vendor sells the property, in fact agreed to pay more than the fixed amount, and the vendor is informed of that fact before completing the sale, and he takes a less sum, the vendor is liable.15
Where an owner agreed to give the broker all above $1,400 obtained for his property, and also agreed not to sell the property without giving the broker notice, and the broker brought a customer for $1,500 and learned, it then being February, that the owner had sold the property in January for $1,350 without notice to the broker, it was held that this being a valid express contract, there was no place for a recovery on quantum meruit, and that the broker was entitled to recover the stipulated compensation amounting to $100.16
12 Holcomb v. Stafford, 102 Minn. 233 (1907). (citing Antisdel v. Canfleld, 119 Mich. 229; 77 N. W. 944; Beatty v. Bussell, 41 Nebr. 321; 59 N. W. 919; Ames v. Lamont, 107 Wis. 531; 83 N. W. 780). See also Beaumont v. Samson, 90 Pac. 839 (Cal. 1907).
13 Hobart v. Stewart, 99 Minn. 394 (1906).
14 Church v. Dunham, 14 Idaho 776 (1908).
15 Holcomb v. Stafford, 102 Minn. 233 (1907).