Sec. 130. Consummation Of Sale By Principal

Where the agent is the procuring cause, he is entitled to commissions even though the negotiations were conducted and concluded by the principal in person.77

"It is sufficient to entitle a broker to compensation that the sale is effected through his agency as its procuring cause, and if his communications with the purchaser were the cause or means of bringing him and the owner together, and the sale resulted in consequence thereof, the broker is entitled to recover." 78 In the case of Lloyd v. Matthews, 51 N. Y. 124 (1872) just quoted from, it was also held no error for the court to charge that where a buyer goes directly to the owner and shows such familiarity with the terms of sale of the property - the price asked, for instance - as to lead the owner to believe that the purchaser must have acquired his knowledge from some one who knew, it may become the duty of the owner to inquire from the purchaser who gave him his information, in order that the owner may inform himself whether or not the purchaser derived his information from any of the brokers into whose hands the owner had given the property for sale.79 And some of the authorities hold that the fact that the owner did not know that the purchaser had been sent to him by his broker is immaterial.80

In Quist v. Goodfellow, 99 Minn. 509 (1906), it was said: "Some of the authorities hold that a real estate broker is entitled to his commission where his efforts were in fact the procuring cause of a sale though made by the owner in good faith and in ignorance of his efforts. * * To entitle the broker to a commission in such case, where there is no exclusive agency, it must appear that the owner knew, or from the circumstances ought to have known, that the broker was instrumental in inducing the purchaser to enter into the contract. Such was the rule laid down in Cathcart v. Bacon, 47 Minn. 34; 49 N. W. 331, and it is the law in other states.81 We are aware of the fact that the authorities are somewhat conflicting upon the subject. (19 Cyc. 264.)"

76 Schultz v. Zelman, 111 S. W. 776 (Tex. 1908).

77 Morgan v. Keller. 194 Mo. 679 (1905).

78 I.loyd v. Matthews. 51 N. Y. 124 (1872); Finch v. Betts. 134 111. App. 475 (1907); Boqua v. Marshall, 114 S. W. 714 (Ark. 1908); Goldsmith v. Coxe. 61 S. E. 555 (S. C. 1908). See also Sec. 100. 101 supra and Sec. 240. 241 infra.

79 See also Henninger v. Burch. 90 Minn. 43 (1903).

80 See Colonial Trust Co. v. Pacific Co.. 158 Fed. 280 (1907), in which the court refers to Graves v. Bains, 78 Tex. 92; Bryan v. Ahert. 3 App. D. C. I8O; Adams v. Decker 34 111. App. 17; Kellv v. Stone. 94 Iowa 316; Millan v. Porter. 31 Mo. App. 563; Tyler v. Parr, 52 Mo. 249; Ross v. Muskowitz. 95 S. W. (Tex. Civ. App.) 86.

In another case,82 it was said: "While the broker must produce, as well as find, a purchaser,83 it is not indispensable that he participate in the negotiations immediately resulting in a sale, or even that the owner know that the purchaser was the broker's customer.84 A charge to the effect that, in the absence of the broker, it was the duty of the owner to ascertain from the purchaser who sent him was held correct in Bickart v. Hoffman, 46 N. Y. St. Repr. 886. But it was intimated by this court in this department that there might be circumstances in which the fact that the owner was ignorant that the purchaser was the broker's customer would be controlling." 85

"The fact that the defendant did not know, at the time of making the sale to Shumaker, that the latter had been procured by the plaintiffs is immaterial. The right to a recovery by the plaintiffs depended upon the fact that they had procured the purchaser, and not upon the knowledge on the part of the defendant of that fact at the time of the sale." 86

81 Citing Soule v. Deering, 87 Me. 365: 32 Atl. 998; Gamble v. Grether, 108 Mo. 340; 83 S. W. 306; Tinges v. Moale, 25 Md. 480; 90 Am. Dec. 73; Wylie v. Marine, 61 N. Y. 415.

82 Jungeblut v. Gindra, 134 App. Div. 293 (N. Y. 1909).

83 Citing Gerding v. Haskin. 141 N. Y. 514; Rae Co. v. Kane, 121 App. Div. 494.

84 Citing Lloyd v. Matthews, 51 N. Y. 124; Sussdorff v. Schmidt, 55 N. Y. 319; Wylie v. Marine National Bank, 61 N. Y. 415.

85 Citing Metcalfe v. Gordon, 86 App. Div. 368.

Where a broker employed to sell lands merely called the attention of a prospective purchaser to the property without notifying his principal and without taking further steps in the matter, he is not entitled to commissions if the owner, five or six months afterwards, sells the land to the customer without knowledge of the broker's negotiations.87

Where a broker employed to sell at a specified price procures a proposed purchaser and opens negotiations with him, the fact that the employer, without terminating the agency or the negotiations so commenced, takes it into his own hands and concludes the sale at a lower price, or upon modified terms, does not deprive the broker of his right to commissions.88 But where the broker opens negotiations, but fails to bring the customer to the specified terms and abandons the negotiations, the employer may subsequently sell to the same person at the price fixed, without liability for commissions.89 Where negotiations are, in good faith, broken off and abandoned, and a sale is finally effected wholly through the influence of another broker, the first broker is not entitled to commissions.90 And so when negotiations with a prospective purchaser are broken off and the broker attempts to sell him property of other persons, he is not entitled to commissions when the owner, a month afterwards, sells to the proposed purchaser on different terms.91 A contract employing a broker to sell lands, and giving him commissions "in case of the sale or conveyance of said property at any time within one year from this date," should not be construed to mean that the broker was entitled to commissions if the property were sold by the owner without the aid of the broker, but, on the contrary, only entitles the broker to commissions if he was instrumental in bringing the owner and purchaser together.92 And where a broker voluntarily interposes in a transaction between the principals, but even then fails to bring the purchaser up to the terms of the seller, he is not entitled to a commission when the principals later get together in continuation of the negotiations and come to an agreement.93

86 Mlllan v. Porter 31 Mo. App. 570 (1888), (citing Tyler v. Parr, 52 Mo. 250; Goffe v. Gibson, 18 Mo. App. 4).

87 Waters & Son v. Rafalsky, 134 App. Div. 870 (N. Y. 1009).

88 Hobbs v. Edgar. 23 Misc. 018 (N. T. 1898) : Wright v. McCllntock, 130 111. App. 442 (1907); Phinlzy v. Bush. 129 Ga. 486 (1907): Morris v. Francis. 75 Kans. 580 (1907): s. c. 89 Pac. 901; Cook v. Forst. 110 Ala. 396 (1896).

80 Markus v. Kenneally, 43 N. Y. Suppl. 1056 (1897).

90 Walker v. Baldwin, 106 Md. 032 (1907).

91 Miller v. Vlnlng, 112 App. Div. 304 (N. Y. 1906).

92 Parkhurst v. Tryon, 134 App. Div. 843 (N. Y. 1909). See also subject of exclusive agency in Sec. 99 supra end 239 infra.

93 Willard v. Ferguson, 125 App. Div. 868 (N. Y. 1908). See also Klernan v. Bloom, 91 App. Div. 429 (N. Y. 1904), quoted supra Sec. 96.