But while the seller is entitled to know who the proposed purchaser is, and with whom he is expected to enter into contract, he may relinquish that right by waiving the production of the intending purchaser and the consequent information.24 Thus where the principal does not ask for it, the broker need not disclose the name of his customer.25 And where the broker has not disclosed the name of the proposed buyer, and the seller interposes no objection thereto, but refuses to make the sale after the broker notifies him that a purchaser has been procured, he (the seller) waives the right to the defense that the broker is not entitled to commissions because he did not communicate the name of the proposed purchaser.26
On the other hand, "an agent cannot be deprived of his commission merely because the actual purchaser takes title in another's name."27 The deed to the purchaser is admissible in evidence to show who the purchaser really was.28
21 Veasey v. Carson, 177 Mass. 117 (1900), (citing Young v. Hughes, 32 N. J. Eq. 372; Pratt v. Patterson, 112 Penn. St. 475).
22 Jungeblut v. Gindra, 134 App. Div. 293, 294 (N. Y. 1909).
23 Simpson v. Smith, 36 Misc. 815 (N. Y. 1902). 24 Hovey v. Aaron, 133 Mo. App. 583 (1908). 26 Duclos v. Cunningham, 102 N. Y. 678 (1886).
The rule requires that the proposed purchaser must not only be ready and willing, but also able to purchase, on the seller's terms.29 By this is meant that the proposed purchaser must be financially able to make the purchase. Where no contract results, in order to recover, the broker must show the financial ability of the proposed purchaser.30
In Iselin v. Griffith, 62 Iowa 668 (1883), the owner sold the land to another after notice of a sale made by the broker. The court said: " We think that, in order to entitle plaintiffs to recover, something more than a mere offer to purchase should be shown by them. Such an offer could be made by one without means, and who is in no condition to comply with the terms of the sale, and against whom a claim for damages resulting from a failure to perform the contract of purchase, could not be enforced. An offer from such an one ought not to be considered as constituting the performance of plaintiffs' undertaking to negotiate the sale of the land. As the pecuniary responsibility of the purchasers was or ought to have been known to plaintiffs, and as upon it depended the performance of their contract with defendant, the burden rested upon them to show it. These conclusions are supported by Coleman's Exrs. v. Mead, 13 Bush. 358, and McGavock v. Woodlief, 20 How. 221. Contra see Cook v. Kroemeke, 4 Daly 268, and Hart v. Hoffman, 44 How. Pr. 168."
27 Konner v. Anderson, 32 Misc. 511 (N. Y. 1900), (citing Randrup v. Schroeder, 22 Misc. 367 (N. Y. 1898) ).
28 Myers v. Cohen, 4 Misc. 185 (N. Y. 1893).
28 Lunney v. Healey, 44 L. R. A. 619 (1898).
30 Corbin v. M. & T. Bank, 121 App. Div. 744 (N. Y. 1907). But Bee McDennott v. Mahoney, 115 S. W. 38 (Iowa 1908).
Where no contract of sale was entered into and the sole question was whether the broker had produced a purchaser who was able to purchase on the defendant's terms, and one of the terms was a cash payment of considerable amount, the broker was required to show that the proposed purchaser had available funds. And assets consisting of stock in business and claims against third parties were not held sufficient.31
Where an informal contract is agreed upon, and the proposed buyer is to pay $450 on the signing of the formal contract, and a large amount at the closing of title 32 and the vendor refuses to execute the formal contract as agreed, the question of the financial ability of the purchaser, it seems, should be whether he was financially able to pay the deposit at the time agreed, not whether he was then able to pay the entire purchase price.33