The broad statement that the broker when unsuccessful gains nothing from his labor and effort, "must be taken with one important and necessary limitation. If the efforts of the broker are rendered a failure by the fault of the employer; if capriciously he changes his mind, after the purchaser, ready and willing, and consenting to the prescribed terms, is produced; or if the latter declines to complete the contract because of some defect of title in the ownership of the seller, some unre-moved encumbrance, some defect which is the fault of the latter, then the broker does not lose his commissions. And that upon the familiar principle that no one can avail himself of the non-performance of a condition precedent, who has himself occasioned its non-performance. But this limitation is not even an exception to the general rule affecting the broker's right, for it goes on the ground that the broker has done his duty, that he has brought buyer and seller to an agreement, but that the contract is not consummated and fails through the after-fault of the seller. The cases are uniform in this respect."40
"An agent cannot be deprived of his commission merely because the actual purchaser takes title in another's name."41 And a broker does not lose his commission simply because the purchaser he produced did not buy in person but through an agent, provided the agency is known to the owner of the property.42
4o Sibbald v. Bethlehem Iron Co., 83 N. Y. 383 (1880).
41 Konner v. Anderson, 32 Misc. 511 (N. Y. 1900), (citing Randrup v. Schroeder, 22 Misc. 367). ___ ...
42 Minster v. Benoliel, 32 Misc. 030 (N. Y. 1900). As to the matter of knowledge on the vendor's part that the purchaser is the broker's customer, see Sec. 130 infra.
"The broker must be the efficient agent or procuring cause of the sale."43 It is not indispensable that the purchaser should be introduced to the owner by the broker, nor that the broker should be personally acquainted with the purchaser; but in such cases it must affirmatively appear that the purchaser was induced to apply to the owner through the means employed by the broker.44 But "to earn a commission for effecting the sale of real estate, a broker must do something more than get authority from the owner to negotiate the sale. He must be the effectual cause of the sale. He must find the purchaser, or at the very least induce a purchaser to buy the property at a price acceptable to the owner, and the sale must proceed from his efforts."45 Where, for instance, a person ascertained that A desired to sell or exchange, and presented A's card to B which resulted in an ex-exchange, held, the broker was not entitled to commission.46
" All the cases agree that the disclosure of the purchaser's name and the putting of him in communication with the defendant by the plaintiff must be not only the foundation upon which the negotiation was begun, but upon which it was conducted and the sale ultimately made.47 The broker must be shown to be the procuring cause of the sale. The intervention of the plaintiff in beginning the negotiations, and their subsequent culmination in a sale, will not suffice unless those negotiations were the ultimate cause of the sale." 48
"To entitle a broker to commissions, he must have produced a purchaser who was ready, willing and able to purchase the property upon the terms and at a price designated by the principal. Second: The broker must be the efficient agent or procuring cause of the sale. The means employed by him and his efforts must result in the sale. He must find the purchaser and the sale must proceed from his efforts, acting as broker." 49
43 King Powder Co. v. Dillon, 96 Pac. 441 (Colo. 1908) ; Platt v. Johr, 9 Ind. App. 61 (1893).
44 Sussdorff v. Schmidt, 55 N. Y. 322 (1873). And see Sec. 90 supra.
45 Seherer v. Colwell, 43 Misc. 391 (N. Y. 1904); Ayres v. Thomas, 116 Cal. 144 (1897); Burch v. Hester, 109 S. W. 399 (Tex. 1908).
46 See Walton v. M'Monuw, 63 App. Div. 147 (N. Y. 1901); affd, 175 N. Y. 493 (1903). no opinion.
47 Citing Keener v. Harrod, 2 Md. 71; Hollyday v. Southern Agency. 100 Md. 296.
48 Walker v. Baldwin. 106 Md. 619 (1907). See Sec. 97, 98 supra, 237 infra for subject of "Employment of Several Brokers."
"It may be doubtful whether merely advising the consummation of a bargain, of which the efforts of a rival (broker) are the procuring cause, would entitle a broker to commissions. It ought certainly to be shown that the advice given contributed so materially to the result as to be fairly entitled to be regarded as the procuring cause of the transaction." 50
If a proposed purchaser promises to pay the commission in case he purchases because the vendor would pay no commission, and the property is subsequently sold to a third party, who in turn sells to the proposed purchaser, the question whether the commission was earned should be submitted to the jury.51
And the broker must procure a purchaser during the term of his employment. (See Sec. 138 and also Ch. X.)