Sec. 116. Procuring Cause

"The undertaking of the broker is to make efforts to procure a purchaser, but if he fails he is entitled to no pay unless there is a special contract."12 "A broker for the sale of real estate is entitled to his commission when, in the language of the cases, he 'is the procuring cause of the sale' ; that is, when he has found a purchaser and brought him to his employer and a contract is made between them for the sale of the property, or the purchaser is ready to purchase and the seller refuses or is unable to consummate the sale."13

นน Humphries v. Smith, 5 Ga. App. 342 (1908). 12 Sussdorff v. Schmidt. 55 N. Y. 321 (1873).

13 Fraser v. Wyckoff, 63 N. Y. 445 (1875); Hoadley v. Savings Bank of Danbury, 44 L. R. A. 321 (1899); Lunney v. Healey, 44 L. R. A. 593 (1898).

That the seller's wife refused to consent to the arrangements, thereby defeating a sale, cannot deprive the broker of commissions, if the other requisites exist.14 The same is true even though the property be the homestead. In Young v. Ruhwedel, 119 Mo. App. 241 (1906) the court said: "It is urged that as the farm was the homestead of defendant and his wife, and therefore their joint estate, the contract of employment must be held void because the wife was not a party to it. Recently, in the case of Curry v. Whitmore, 111 Mo. App. 204, where the sale made by the agent employed by the husband alone was defeated by the refusal of the wife to sign the deed, we answered the argument that the husband could not sell the homestead without his wife's consent by saying,'Neither can a husband sell any other lands and make perfect title without his wife's consent. But neither of these conditions will relieve him of liability on his contract for the sale of such lands. That is a matter he should think of and provide against at the time he enters into his obligations.' If plaintiff produced a purchaser possessing the requisite qualifications, defendant offered no legal excuse for his failure to consummate the sale in the fact of his wife's refusal to sign the deed."15

Sec. 117. What Is Required To Constitute A Broker A " Procuring Cause."

The broker may, by special agreement, impose on himself any variety of conditions upon which his right to commissions should depend, but, under the usual employment, the broker is entitled to his commissions when he procures a contract of sale or produces a purchaser, ready, willing and able to purchase on his principal's terms. This is the rule which is supported by the weight of judicial opinion.16

14 Goldberg v. Gelles, 33 Misc. 797 (N. Y. 1901); Brauch v. Moore, 105 S. W. 1180 (Ark. 1907).

15 Citing McCray & Sons v. Pfost, 118 Mo. App. 672.

There are some authorities which hold that the broker must go further and procure an executed contract before he is entitled to commissions, stating that "to procure a purchaser" requires the procuring of an enforceable contract.17

The requirement is discussed at length in Wilson v. Mason, 158 111. 310, 311 (1895), as follows: "Some of the cases go so far as to hold, that the broker is not entitled to his commissions unless the sale is actually accomplished by the delivery of the deed of the land from the vendor to the vendee and the payment of the purchase money by the latter, or unless it is proven that the sale is prevented by the fault of the vendor. Other cases seem to hold that the broker is entitled to his commissions when the minds of the vendor and purchaser meet in a verbal agreement for the sale by the one and the purchase by the other of the land. We are not inclined to follow either of these classes of cases, regarding them as extreme and exceptional. The true rule is, that the broker is entitled to his commissions, if the purchaser presented by him and the vendor, his employer, enter into a valid, binding and enforceable contract. If, after the making of such a contract, even though executory in form, the purchaser declines to complete the sale and the seller refuses to compel performance, the broker ought not to be deprived of his commissions. He has done all that he can do when he produces a party who is able, and, in binding form, offers to purchase upon the proposed terms. An agreement by a real estate broker to procure a purchaser not only implies that the purchaser shall be one able to comply, but that the seller and the purchaser must be bound to each other in a valid contract. So, where the agreement of the real estate broker is to make a sale, his commission is earned when a contract is entered into which is mutually obligatory upon the vendor and vendee, even though the vendee afterwards refuses to execute his part of the contract of sale or purchase.18

16 Mooney v. Elder, 56 N. Y. 238 (1874); Duclos v. Cunningham, 102 N. T. 678 (1886); Gilder v. Davis, 137 N. Y. 506 (1893); Martin v. Bliss. 57 Hun 157 (N. Y. 1890) ; Brady v. Foster, 72 App. Div. 416 (N. Y. 1902); Snydam v. Healy, 93 App. Div. 396 (N. Y. 1904); King v. Knowles. 122 App. Div. 414 (N. Y. 1907); Scott v. Neuberger. 58 Misc. 22 (N. Y. 1908); Rae Co. v. Kane, 132 App. Div. 935 (N. Y. 1909) ; Hinds v. Henry, 36 N. J. L. 332 (1873); Ryer v. Tnrkel, 70 Atl. 68 ( N. J. 1908); Fisher Co. v. Realtv Co., 159 Mo. 562 (1900); Gerhart v. Peck, 42 Mo. App. 651 (1890); Morgan v. Keller. 194 Mo. 680 (1905); Hannan v. Prentls. 124 Mich. 419 (1900); Flower v. Davidson. 44 Minn. 46 (1890); Covey v. Henry. 71 Nebr. 124 (1904); McFarland v. Lillard. 2 Ind. App. 163 (1891); Platt v. Johr, 9 Ind. App. 60 (1893) ; Vinton v. Baldwin. 88 Ind. 105, 106 (1882), (citing Lane v. Albright. 49 Ind. 275; Love v. Miller. 53 Ind. 294; 21 Am. R. 192; Reyman v. Mosher, 71 Ind. 596; Moses v. Bierling, 31 N. Y. 462; 24 Alb. L. J. 536; Hart v. Hoffman. 44 How. Pr. 168; and Pickett v. Badger. 1 C. B. (N. S.) 296); Creveling v. Wood, 95 Pa. St. 157 (1880); Lockwood v. Halsey, 41 Kans. 170 (1889); Mears v. Jones, 102 Me. 490 (1907); Jones v. Moore, 30 Ky. Law Rep. 605 (1907); Yoder v. Randol, 83 Pac. 537 (Okla. 1905); s. c, 3 L. R. A. (N. S.) 576; Lnnney v. Healey, 44 L. R. A. 623 (1898) ; McLaughlin v. Wheeler, 1 S. D. 521 (1891), (citing Hamlin v. Schulte, 34 Minn. 534; 27 N. W. 301; and Hannon v. Moran. 71 Mich. 261; 38 N. W. 909) ; Block v. Ryan, 4 App. Cas. D. C. 283 (1894); Dotson v. Milliken, 27 App. D. C. 514 (1906), (citing Koch v. Emmerllng. 22 How. 69; 16 L. Ed. 292; McGavock v. Woodllef, 20 How. 221; 15 L. Ed. 884; Bryan v. Albert. 3 App. D. C. 180, 181; Cheatham v. Yarbrougb. 90 Tenn. 77, 79; 15 S. W. 1076; Washburn v. Bradley, 169 Mass. 86, 88; 47 N. E. 512; Holden v. Starks. 159 Mass. 503 ; 38 Am. St. Rep. 451 ; 34 N. E. 1069; and Knapp v. Wallace. 41 N. Y. 477) ; Cheatham v. Yarbrough, 90 Tenn. 79 (1891), (citing Mech. on Agency, Sec. 966. 967; 2 Am. & Eng. Ency. of Law, 578, 581; 2 Add. on Contracts (Morg. Ed.), Sec. 931; Cook v. Fish, 12 Gray 493; 88 Ind. 104; 8. c, 45 Am. R. 447; 57 Cal. 224; 31 Md. 270; Gilchrist v. Clarke. 2 Pickle 585; Parker v. Walker. 2 Pickle 569, and dissenting opinion in the same case. 573); Fltzpatrlck v. Gilson, 176 Mass. 477 (1900), (citing Middleton v. Thompson, 163 Penn. St. 112; Fischer v. Bell. 91 Ind. 243; Vinton v. Baldwin. 88 Ind. 104; Peet v. Sherwood. 43 Minn. 447; Budd v. Zoeller. 52 Mo. 238; Buckingham v. Harris, 10 Colo. 455; Cook v. Welch. 9 Allen 350; Desmond v. Stebbins. 140 Mass 339; and Keys v. Johnson. 68 Penn. St. 42); Monroe v. Snow. 131 111. 136 (1891), (citing McGavock v. Woodllef, 28 How. 221; Dot.v v. Millar. 43 Barb. (N. Y.) 529; and Bailey v. Chapman. 41 Mo. 537). But see Wilson v. Mason, 158 111. 310 (1895), a fairly full quotation from which Is given in this Section. In another Illinois case, decided before Wilson v. Mason. it was said: "In order to be entitled to commissions it is indispensable that the broker sbonld show that he has produced a purchaser ready and willing to take the property on the terms Specified. or that his efforts were the procuring cause of the sale which the principal has made to the purchaser with whom he has been brought into communication." Davis v. Cassette. 30 111. App. 47 (1888).

"Parker v. Walker, 86 Tenn. 569 (1888). See also Emery v. Atlanta Exchange. 88 Ga. 326 (1891). See also Sec. 118.

"An oral agreement upon the part of the purchaser of land would not be a valid agreement; and if he refused to complete the sale of the land after such oral agreement, without fault upon the part of the seller, the obligation of the broker would not be fulfilled, and he could not recover his commissions.19 Nor would a written agreement be binding upon the purchaser of land, under the Statute of Frauds, if such agreement were signed for him by some other person not lawfully authorized in writing to do so."20 And at page 314 the court says: "If the contract is of such a character, that the vendee can successfully plead the Statute of Frauds against its performance in a suit therefor by the vendor, then it is not a valid contract entitling the broker to his commissions within the rule already laid down." 21

18 Citing Parker v. Walker, 86 Tenn. 566; Coleman's Exrs. v. Mead. 13 Bush. 358; Francis v. Baker, 45 Minn. 83; Love v. Miller, 53 Ind. 294; Veazie v. Parker, 72 Me. 443; Willes v. Smith, 77 Wis. 81 ; Rice v. Mayo, 107 Mass. 550; Christensen v. Wooley, 41 Mo. App. 53; Love v. Owens. 31 Mo. App. 501; Greene v. Hollingshead, 40 111. App. 195; Short v. Millard, 68 111. 292; Kerfoot v. Steele, 113 111. 610; Ward v. Cobb, 148 Mass. 518.

"Citing Parker v. Walker, supra; Middleton v. Findla, 25 Cal. 76; Whitney v. Cochran, 1 Scam. 209; Christensen v. Wooley, supra.

In other cases there are expressions which lend color to this view. Thus in Flynn v. Jordal, 124 Iowa 458 (1904), it was said that where no sale was actually consummated the broker to be entitled to commissions must either have procured a valid obligation to buy, or have brought the proposed purchaser and the vendor together so that a contract of sale might have been entered into if the vendor had so elected.

And in Kifer v. Yoder, 198 Pa. St. 308 (1901), it was said: "It is always incumbent upon a broker seeking to recover a commission, to prove either that a sale was made to the party whom he procured as a purchaser, or that the purchaser was able and willing to buy and the failure to make an actual sale was through no fault of the broker or his customer." 22