Sec. 118. Procuring Cause As Affected By Special Contract

A special contract supersedes the general rule as to commissions, and when such a contract exists the broker must, of course, comply with its terms before he is entitled to commissions.

"Upon the general question concerning the services to be performed by a land broker or agent to entitle him to recover upon a contract for commissions, there is much confusion in the cases. It is apparently held by some Courts that the production of a purchaser who is ready and willing to buy upon the authorized terms, is all that is required to entitle the agent to the agreed compensation.23 Other cases hold to the rule that, under a contract giving the agent authority to sell, and providing a commission for such service, the mere production of a purchaser who is willing to buy upon the stated terms is not sufficient, but an actual sale or binding contract of sale must be shown before a recovery can be had upon the agreement.24 Many of the decisions involving agent's and broker's commissions turn, more or less, upon the effect of the custom obtaining in such business, and upon implied obligations growing out of the peculiar circumstances in the case decided. But where, as in this case, there is a special contract expressly stating the terms and conditions of the obligation entered into, there is no room for implication, nor can its terms be controlled by reference to custom. Consigney's contract empowered him to make a sale, to collect the cash payments, and to retain therefrom his commissions. By his petition he alleges that he did, in fact, make a sale, which appellants wrongfully refused to carry out by making the proper conveyance. Upon such a claim, based upon such an agency we have heretofore held that the recovery of commissions depends upon a 'consummated sale' - not necessarily a sale consummated by the delivery of deeds of conveyance, but such a contract as will be enforced by the Courts if enforcement be demanded. Felts v. Butcher, 93 Iowa 414. The doctrine of this decision is well supported by the authorities. In Wilson v. Mason (158 III. 304; 42 N. E. Rep. 134; 49 Am. St. Rep. 162) the Illinois Court reviews the leading precedents and holds the true rule to be that the commission of an agent who undertakes to sell (as distinguished from a mere agreement to find a purchaser) ' is earned when a contract is entered into which is mutually obligatory upon the vendor and the vendee.' This holding is fully sustained by the other cases in the list last above cited (see footnote 24) as well as many more to which no special reference is here made. The rule of the Felts case is controlling in the present controversy. The cross-petitioner's action is based upon a special contract of agency to sell, and he can recover only by proof of a sale in fact; that is, a sale so far consummated as to be valid, binding and mutually obligatory upon the parties - vendor and vendee. That a completed sale as a basis for the recovery of commissions was contemplated by the parties, is shown in the stipulation, which authorized the agent to retain his compensation from the first cash installment of the price for which the property might be sold. In a case very similar to the one at bar, where the agent's commission was to be the excess obtained over a fixed net price, the Supreme Court of Minnesota has said that a provision of this kind 'involves the proposition that a sale shall be consummated' before an action by the agent on the contract will be sustained.25

20 Citing 111. Rev. Stat., Ch. 59, Sec. 2; Cloud v. Greasley, 125 111. 313; McGinnis T. Fernandes, 126 111. 228.

21 Cf. Monroe v. Snow, 131 111. 136 (1891). See also Sec. 118. 22 See also Fraser v. Wyckoff, 63 N. Y. 445 (1875).

ēģ Citing Knapp v. Wallace, 41 N. Y. 479; Davis v. Lawrence, 52 Kans. 383; 34 Pac. Rep. 1051; Parker v. Walker, 86 Tenn. 566; 8 S. W. Rep. 391; Potvln v. Curran, 13 Neb. 302; 14 N. W. Rep. 400.

24 Citing Hammond v. Crawford, 66 Fed. Rep. 425; 14 C. C. A. 109; 35 U. S. App. 1; Norman v. Reuther, 25 Misc. Rep. 161; 54 N. Y. Supp. 152; Keys v. Johnson, 68 Pa. 42; Haydock v. Stow, 40 N. Y. 363; Wilson v. Mason. 158 111. 304: 42 N. E. Rep. 134; 49 Am. St. Rep. 162; Olson v. Jodon, 38 Minn. 408; 38 N. W. Rep. 485; Richards v. Jackson, 31 Md. 250; 1 Am. Rep. 49; De Santos v. Taney, 13 La. Ann. 152; Dorrlngton v. Powell, 52 Neb. 440; 72 N. W. Rep. 587; Drury v. Newman, 99 Mass. 256; Bradford v. Menard, 35 Minn. 197; 28 N. W. Rep. 248.

"In the preceding division of this opinion, we have held that no contract was effected between Ormsby and Consigney which equity will enforce against appellants. This alone has been held sufficient to defeat a claim for agent's commissions for negotiating an alleged sale.28 And such seems to be the logical import of the opinions of this Court in Felts v. Butcher, 93 Iowa 414, and Burns v. Oliphant, 78 Iowa 456. See also Wilson v. Mason, 158 111. 304; 42 N. E. Rep. 134; 49 Am. St. Rep. 162, and Ward v. Cobb, 148 Mass. 518; 20 N. E. Rep. 174; 12 Am. St. Rep. 587, which, while not parallel cases, have a bearing upon the principle under discussion."27

25 Citing Cremer v. Miller. 56 Minn. 52; 57 N. W. Rep. 318. 26 Citing Simonson v. Klssick, 4 Daly 143; Cromble v. Waldo (Super. Ct. N. Y.). 17 N. Y. Supp. 373.