Sec. 126. Presence Of Broker

The broker need not of necessity be present and an active participator in the agreement of buyer and seller when that agreement is actually concluded.52 Brokers are to bring buyer and seller together; they need have nothing to do with the negotiation of the bargain.53 The "sale " which brokers are to make under the ordinary employment is usually considered as effected when the minds of the buyer and seller are brought to meet.54 "He may just as effectually produce and create the agreement, though absent when it is completed and taking no part in the arrangement of its final details." 55 He must, however, bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made.56

49 Cole v. Ttaornburg, 4 Colo. App. 97 (1893). (citing Babcock v. Merrltt, 1 Colo. App. 84, and cases cited; Anderson v. Smythe. 1 Colo. App. 253).

50 Davis v. Gassette, 30 111. App. 40 (1888).

51 Mutelinlek v. Friedman. 135 App. Div. 356 (N. T. 1909).

52 Colonial Tr. Co. v. Pacific. 158 Fed. 280 (1907), (citing SIbbald v. Bethlehem Iron Co.. 83 N. Y. 378; Hoadley v. Savings Bank. 71 Conn. 599; 42 Atl. 067; 44 L. R. A. 321; Vreeland v. Vetterlein. 33 N. J. L. 247; Keys v. Johnson. 68 Pa. 42; McMillan v. Beves, 77 C. C. A. 444; 147 Fed. 218; French v. McKay, 181 Mass. 485; 63 N. E. 1068).

53 Crevellng v. Wood, 95 Pa. St. 157 (1880).

Where the broker produced to the owner a proposed purchaser, and a memorandum of the purchase and sale was written out and signed by the seller in duplicate and the proposed purchaser took them and did not sign them in the form they then were, but made some material erasures and interlineations and then signed them, and the seller refused to re-sign them in their altered shape, it cannot be said that there was a meeting of the minds of the parties.57

The fact that the broker is not present at the sale is of no consequence, for, to entitle him to compensation, it is sufficient that a sale is effected through his agency, as its procuring cause; and if his communications with the purchaser are the means of bringing him and the owner together, and the sale results in consequence, the compensation is earned, although the broker does not negotiate and is not present at the sale.58 And neither need the broker transact the business in person. After he has produced the buyer, the owner may conclude the transaction, and the broker will not lose his commission.59 And where the owner concludes the sale at a less sum than that fixed, the broker is entitled at least to a ratable proportion of the agreed commission.60

54 See Sec. 158, 159 infra.

55 Sibbald v. Bethlehem Iron Co., 83 N. Y. 382 (1880).

56 Id. And see Sec. 96 supra.

57 Bruce v. Hurlbut, 47 App. Div. 163 (N. T. 1900). See also Sec. 132-138 infro as to terms of sale.

58 Hobbs v. Edgar, 23 Misc. 618 (N. Y. 1898); Boqua v. Marshall, 114 S. W. 714 (Ark. 1908).

59 Baker v. Thomas, 11 Misc. 112 (N. Y. 1895).

60 Martin v. Sllliman, 53 N. Y. 615 (1873).