Sec. 106. Employment Necessary To Recovery Of Commissions

"To justify a recovery there must be an employment of the broker either express or implied from the circumstances surrounding the transaction." 8 "If the broker introduces one party to the other and a sale results, unless he is able to show employment, that fact does not entitle him to compensation." 9

"To entitle a broker to recover commissions for effecting a sale of real estate, it is indispensable that he should show that he was employed by the owner (or on his behalf) to make the sale. A ratification of his act, where original employment is wanting, may, in some circumstances, be equivalent to an original retainer, but only where there is a plain intent to ratify. An owner cannot be enticed into a liability for commissions against his will. A mere volunteer without authority is not entitled to commissions merely because he has inquired the price which an owner asks for his property and has then sent a person to him who consents to take it. A broker has no better claim to recover for voluntary services rendered without employment and not received and acted upon by the owner as rendered in his behalf than any other volunteer. * * It is not true that an owner may not declare his price to whom he will without the hazard of paying commissions to those who volunteer, unasked, to send him a purchaser on his own terms."10

6 Holley v. Townsend, 2 Hilt. 34 (N. Y. 1858).

7 Hurd v. Lee. 132 App. Div. 110 (N. Y. 1909).

8 Benedict v. Pell, 70 App. Div. 43 (N. Y. 1902): Fordtran v. Stowers. 113 S. W. 031 (Tex. 1908); Sanchez v. Yorba, 97 Pac. 205 (Cal. 1908), (citing Toomy t. Dunphy, 86 Cal. 640; 25 Pac. 13).

9 Bright v. Canadian Int. Stock Yard Co., 83 Hun 482 (N. Y. 1895).

Sec. 107. Manner Of Employment

The employment of the broker is usually brought about by the principal listing the property for sale with the broker. That, of course, amounts to an employment.11 And, as we shall see presently, the broker may be employed by a third person in behalf of the principal, or a person may place himself in such relation with the broker that an employment will be implied, or, still further, the broker may proceed to act without being expressly employed, and what he does is accepted or ratified by the principal in such manner as to impose a liability upon the principal for commissions.12 Then, too, efforts have sometimes been made to draw distinctions concerning the nature of the broker's employment, - a subject discussed later in the present volume.13

Sec. 108. Employment Must Be By Owner Or Authorized Agent

To entitle a recovery for broker's commissions, an employment must be shown by the person to be charged, or by his duly authorized agent. A wife has no implied authority to bind her husband in the disposition of his real estate. Her authority must be shown.14 Where the broker is employed by a third person, the execution of the contract of sale by the owner, with full knowledge of the facts, operates as a ratification of the acts of the broker.15 And so, where the owner's son made the arrangements for commission, and all the ensuing negotiations were had with the son, and after the transaction was concluded the broker was referred by the owner to the son for the payment of commission, the son's authority to employ the broker and promise commission is in-ferentially apparent.16

10 Benedict v. Pell, 70 App. Div. 45 (N. Y. 1902), quoting from Pierce v. Thomas, 4 E. D. Smith 354 (N. Y. 1855).

When the fact of employment Is disputed, the question should be left to the Jury. De Mars v. Boehm, 6 Misc. 38 (N. Y. 1893).

นน Ebert v. Wilcox, 155 Mich. 70 (1908). See Forms 36-38 infra.

12 See Sec. 109-112 infra.

13 See Sec. 115 infra.