The broker must produce a purchaser ready, willing and able to purchase on the principal's terms. (Sec. 132, 133.) But if he does not accomplish the precise thing which he was employed to do, but what he does accomplish is accepted by the principal, the broker is entitled to a commission. (Sec. 134, 135.)
If a price is fixed, the broker must procure a purchaser at that price; but the price may be increased by the principal on timely notice to the broker. (Sec. 136, 137.)
The broker must procure a purchaser during the term of his employment, and where no definite time is fixed he has a reasonable time. (Sec. 138.)
The broker is not obligated to make a sale unless he expressly contracts to do so. (Sec. 139.)
Whatever may be the terms and conditions upon which the broker's right to compensation depends, they must be performed as a condition precedent to a right of action for a commission.1 Where the terms of the sale are all given to the broker in advance, he must produce a purchaser ready, willing and able to purchase on those terms, and the owner may refuse any proposed purchaser who is not willing to purchase on all of those terms.2
¹ Fraser v. Wyckoff. 63 N. T. 445 (1875); Monson v. Kill, 144 111. 255 (1893); Jensen v. Marohn. 119 N. W. 988 (S. D. 1909); Crosthwaite v. Lebus, 146 Ala. 525 (1906). As to variation of terms by owner, see Sec. 134, 130 infra.
On the other hand, if the broker produces a person ready, willing and able 3 to purchase on the terms prescribed by the principal, the latter may not impose new or different terms.4 A change of terms comes too late after the broker has negotiated a sale.5 A broker who has procured a purchaser for lands to whom the defendant gave a written receipt for earnest money paid, stating all the terms of the sale, but providing for the execution of a formal contract, is entitled to recover his commissions although the sale was not consummated by reason of the fact that the vendor subsequently, at the time fixed for signing the contract, insisted that the purchaser pay accumulated taxes in addition to the price agreed upon.6
If no terms are laid down beforehand by the principal, the broker takes the hazard. In such case the broker cannot recover commissions unless he produces a purchaser ready, willing and able to purchase on the terms, whatever they may be, then stated by the principal.7
All the terms must be agreed upon. " The particular terms of the contract must be complied with * and no performance upon other terms will suffice, unless accepted by the principal. * The purchaser found by the broker must be not only ready, willing and able to purchase, but to purchase upon the terms specified in the contract of employment." 8
² Smith v. Allen, 101 Iowa 608 (1897). 3 See Sec. 117-119 supra.
4 Milne v. Ingersoll Co., 120 App. Div. 465 (N. Y. 1907). See also Sec. 134, 135, 147 infra.
5 Com. & Inv. Co. v. Real Estate Co., 120 Mo. App. 437 (1906).
6 Phillips v. Kraft, 136 App. Div. 859 (N. Y. 1910). 7 See Sec. 147 infra.
8 Newton v. Conness, 106 S. W. 894 (Tex. 1908); Wolber v. Chambers, 128 111. App. 624 (1906).
Where the broker produces a proposed purchaser who enters into a writing in which some of the terms are agreed upon, but others are left to be agreed upon in the contract of sale, the broker is not entitled to commission if the parties are unable to agree on these other matters.9
Where a broker is employed to sell a whole parcel of land, but produced purchasers for only two portions, and after the lapse of a reasonable time, the owner, independently of the broker, sold the two portions to the purchasers the broker had found, the broker is not entitled to commission on the two portions sold. Before the broker can recover on such a contract he must show performance of the entire contract.10
If the purchaser insists upon more onerous terms in the contract than those which were verbally agreed upon between the parties, the owner is not bound to execute such a contract, and under such circumstances the broker does not produce a purchaser willing to execute a contract upon the terms prescribed.11 And so where the broker's purchaser refused to consummate the purchase unless the vendor would agree to give him a warranty deed, which the vendor refused to do, and the parties could not agree as to the form of the deed, the broker is not entitled to commissions. This was the case in Garcelon v. Tibbets, 84 Me. 148 (1891), in which the court said: " The efforts of the plaintiff to complete the sale failed, not through any fault of the defendant, but by reason of the purchaser and the defendant not being able to agree in reference to the form of conveyance. The purchaser demanded more than the law exacts where there is no agreement, and no form of conveyance is agreed upon. The title was in the defendant. A deed of release or quit claim of the usual form would have conveyed the defendant's title and estate as effectually as a deed of warranty. R. S., Chap. 73, Sec. 14. An agreement or covenant to convey a good title does not necessarily entitle the covenantee to a warranty deed. Kyle v. Kavanagh, 103 Mass. 356, 359."12
9 Shapiro v. Nadler, 51 Misc. 13 (N. Y. 1906). See Malnhart v. Poerschke, 32 Misc. 97 (N. Y. 1900). where the time of closing title had not been agreed upon.
10 Carpenter v. Atlas Imp. Co., 123 App. Div. 706 (N. Y. 1908). But see Sec. 134 infra.
11 Weiss v. Rubinson, 112 App. Div. 276 (N. Y. 1906).
The broker cannot even call upon his principal to go to the place of business of the other party and there make the contract or negotiate for its terms.13