A mere volunteer who brings a customer is not entitled to commissions. (Sec. 104, 105.) To justify a recovery of commissions, there must be an employment of the broker, either express or to be implied from the circumstances. (Sec. 106, 107.) Where the broker claims he was employed by the owner's agent, he must show the agent's authority to employ him. (Sec. 108.) Where original employment is wanting, a ratification of the broker's acts may, under some circumstances, be equivalent to an original retainer. (Sec. 109-112.)
In order to recover commissions, a broker must prove an employment by the defendant and the rendition of services at the defendant's request.1 It occurs frequently that the broker is not retained by the owner of property to endeavor to sell it but hears through other sources that the owner desires to sell. The broker then interests himself in the matter and endeavors to find a purchaser, not having, however, been authorized or requested by the owner to do so. In such case, the broker is said to be a "volunteer." The owner may, in such case, recognize the efforts of the broker and obligate himself to pay commissions, or he may refuse to recognize the broker's efforts altogether.2
¹ Roome v. Robinson, 99 App. Div. 143 (N. T. 1904). ² See Sec. 109-112 infra.
"If the broker renders services as a mere volunteer, without authority, express or implied, the owner of the property is not bound to pay him anything for such services."3 "If a broker, without a previous request, brings a customer to a vendor, and the latter, without further acceptance of the broker's services, takes the customer, the broker is not entitled to compensation. An owner is not obliged to refuse a possible customer because services which he has not requested have been obtruded upon him, nor can he be enticed into a liability for commissions without his knowledge. In order to entitle the broker to commissions, there must be an actual employment or ratification and acceptance of the broker's acts; but in such case the intention to ratify must be plain, and no ratification could be inferred where no claim was made by the broker, and the fact that he was acting as broker was not drawn to the attention of the seller at the time."4
Even though a person is a real estate broker, he may assume such relations to the parties as would entitle the latter to the benefit of any services rendered. For example, a broker may agree that the amount of his commission may be deducted from the purchase price and allowed to the purchaser, in whom he is interested.5 Or, again, a person is not entitled to a commission from the owner for informing a broker that certain property is in the market, a purchaser for which is afterward procured by the broker.6
³Fordtran v. Stowers, 113 S. W. 631 (Tex. 1908), (citing Pipkin v. Home. 68 S. W. (Tex. C1t. App.) 1000; Ehrenworth v. Putnam, 55 S. W. (Tex. Civ. App.) 190; Dunn v. Price, 87 Tex. 319; 28 S. W. 681; Cook v. Welch. 91 Mass. 350; Hinds v. Henry, 36 N. J. L. 328; McVickar v. Roche, 74 App. Div. 397; 77 N. Y. Suppl. 501; Viley v. Pettit, 96 Ky. 576; 29 S. W. 438; Walton v. Clark, 54 Minn. 341; 56 N. W. 40; Barton v. Powers, 182 Mass. 467; 65 N. E. 826).
4 Fowler v. Hoschke, 53 App. Div. 327 (N. Y. 1900) ; McVickar v. Roche, 74 App. Div. 397 (N. Y. 1902) ; Hinds v. Henry, 36 N. J. L. 330 (1873); Ballentine v. Mercer, 130 Mo. App. 614 (1908), (citing Butts v. Rubey. 85 Mo. App. 405; Brady v. Machine Co., 83 N. Y. Suppl. 663; Haynes v. Fraser. 78 N. Y. Suppl. 794; Downing v. Buck, 98 N. W. 388; Barton v. Powers, 65 N. E. 826; Viley v. Pettit. 29 S. W. 438).
s Redhead v. Parkway Club, 148 N. Y. 471 (1895).
Likewise, one not engaged in the real estate business, who learned from the husband of a landowner that his wife wished to sell and was told by the husband to get a customer, is not entitled to a commission because a relative on his advice bought the property, when it does not appear that the husband had any authority to employ the plaintiff or the owner had any knowledge of such employment, or ratified it, or that the husband knew that the plaintiff intended to make any charge for his services.7