The purchaser's ability is generally presumed unless the contrary appear.34
The owner cannot avail himself of the objection that the customer procured by the broker is not able to pay for the premises, after he has accepted such purchaser as satisfactory and has entered into an enforceable contract of purchase and sale with him.35 Where a contract of sale is actually made, the broker, to recover his commissions, need not show the financial ability of the proposed buyer.36 So where all the terms of the sale are agreed upon and the vendor accepts the proposed purchaser, the broker need not show the financial ability of this purchaser.37 Nor need he show it, it has been said, where the vendor refuses to sell for reasons other than the financial inability of the purchaser.38 Thus where the purchaser stated that he had a certified check to pay on account of the purchase price, and was willing to make the contract, and the owner refused to make the contract because he had since advanced the price, an actual exhibition of the tender of the check was held not necessary.39
31 Schnitzer v. Price, 122 App. Div. 409 (N. Y. 1907).
32 See Sec. 364 infra as to meaning of the term "closing of title." 33Levy v. Ruff, 4 Misc. 180 (N. Y. 1893).
34 McFarland v. Lillard, 2 Ind. App. 166 (1891).
35 Alt v. Doscher, 102 App. Div. 344 (N. Y. 1905) ; Watkins Co. v. Thetford. 96 S. W. 72 (Tex. 1906); Parker v. Walker, 86 Tenn. 571 (1888); Phinizy v. Bush. 129 Ga. 486 (1907); Glade v. Eastern 111. Ming. Co., 107 S. W. 1005 (Mo. 1908), (citing Wright v. Brown, 68 Mo. App. 577).
36 Beckley v. Morton, 140 111. App. 304 (1908).
Financial ability of the purchaser is not a proper subject of inquiry where the contract has been executed, and no question is raised concerning same by the vendor, and where there is no question of bad faith or that the broker induced the vendor to execute the contract by representations as to the financial ability of the purchaser.40 Nor is it essential to show the financial ability of the purchasers if the agent is employed to effect a sale on specified terms to designated persons.41
But what has already been said must also be considered from another viewpoint. As we have seen,42 there are cases which hold that the broker's obligation is not completed until the purchaser produced by him carries out his contract. Where such rule prevails, the force of the decisions above referred to is necessarily limited, or fails altogether.43
And "it is, of course, possible for a broker, by special contract, to make his compensation contingent upon the actual payment of the purchase price. Thus, where, by special contract, a broker's commission depends upon fulfillment by the purchaser of his contract to purchase, he cannot recover his commission where the purchaser does not perform because of financial inability, although, after his default, the contract was cancelled by mutual agreement of the parties." 44
37 Brand v. Nagle. 122 App. Div. 490 (N. T. 1907). 38 McFarland v. Ltllard, 2 Ind. App. 166 (1891). 39 Harrell v. Velth, 13 N. Y. St. Rep. 738 (1888). 40 Fleet v. Barker, 120 App. Div. 455 (N. Y. 1907). 41 Stoutenburgh v. Evans, 120 N. W. 59 (Iowa 1909). 42 Sec. 117-119 supra.
43 See Moore v. Irvln, 20 L. B. A. (N. S.) 1168, and notes; s. c, 116 S. W. 662 (Ark. 1909).