The broker must produce a purchaser who is ready, willing and able to purchase on the seller's terms. (Sec. 147, 148.) To procure a party who merely takes an option does not entitle the broker to commission. (Sec. 149.) But having produced a purchaser ready, willing and able to purchase, the broker cannot be deprived of his commissions by a subsequent change of mind on the part of the seller. (Sec. 150.)
The principal has the right to demand to know who the purchaser is; but may waive this right. (Sec. 151, 152.)
The proposed purchaser must not only be ready and willing, but also able to purchase on the terms of the seller. But the seller cannot avail himself of the objection that the customer is not financially able, after he has accepted the purchaser as satisfactory and has entered into an enforceable contract with him. (Sec. 153-155.)
The broker must produce a purchaser ready, willing and able1 to purchase on the seller's terms.2 The minds of the seller and purchaser must be brought to meet, through the broker's agency.3 And it should always be borne in mind that some authorities hold that the broker is not entitled to commissions until he has procured an executed contract.4
1 As to ability of purchaser, see Sec. 153-155 infra.
² Nolan v. East. 132 111. App. 634 (1907); King Powder Co. v. Dillon, 96 Pac 441 (Colo. 1908) ; Cook v Forst. 116 Ala. 397 (1896). ³Runyon v. Wilkinson, 57 N. J. L. 422 (1894).
If the seller lays down his terms to the broker beforehand, and the broker produces a purchaser ready and willing to purchase on the terms laid down, the commissions are earned.5 If, on the other hand, no terms have been laid down, then the purchaser produced by the broker must be ready and willing to purchase on the terms exacted by the seller.6
The requirements of authorization to find a purchaser are not complied with by producing a person willing to take a lease for a long term with the privilege of purchasing.7 Where no statement is made to the broker that the property is free and clear, and the only terms laid down by the owner are that he would sell at a satisfactory figure, the broker is not entitled to commissions for producing a proposed purchaser at a figure satisfactory to the owner, if the proposed purchaser, learning that there are restrictions on the property, refuses to pay the owner's price and offers a smaller amount.8 If the proposed purchaser capriciously or unjustifiably refuses to contract, he cannot be regarded as a ready and willing purchaser.9
Where one whose attention was called by the owner's broker to the fact that certain property was for sale, refused to make such broker an offer and immediately afterwards bought the property through another broker, whom she represented to the owner to be entitled to the commissions, the owner's broker has not produced a purchaser, ready and willing, and cannot recover his commissions, either from the purchaser or her broker.10
4 See Sec. 117-119 supra.
5 Forrester v. Price. 6 Misc. 308 (N. Y. 1893). See Sec. 150.
6 Forrester v. Price, supra; Fairchild v. Cunningham, 84 Minn. 524 (1901); Runyon v. Wilkinson, 57 N. J. L. 421 (1894).
7 Wooley v. Schmal. 5 Ohio Cir. Ct. 76 (1890).
8 Weibler v. Cook. 77 App. Div. 637 (N. Y. 1902).
9 Sheinhouse v. Klneppel, 80 App. Div. 445 (N. Y. 1903).
Where the broker presents a person who assumes to represent an organization desiring to purchase, and such person is unable to produce his authority for entering into a contract on behalf of the organization, and refuses to enter into the contract personally, it was held in Kirwan v. Barney, 29 Misc. 614 (N. Y. 1899) that the owner is not liable for commissions. In the case cited, the court quotes from Bennett v. Egan, 3 Misc. 421 (N. Y. 1893), as follows: "As long as the vendor insists upon something he has a right to insist upon as a condition of sale, and to which the vendee refuses to assent, in consequence of which disagreement the vendee refuses to enter into an enforceable contract of sale, it cannot be held that the broker has procured a complete meeting of the minds of the vendor and vendee."
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
Where a broker produced a proposed purchaser and an informal writing was entered into, according to which the parties were to meet subsequently and execute a written contract of sale, it was held in Feiner v. Kobbe, 13 Misc. 499 (N. Y. 1895) that the broker is not entitled to commissions if the purchaser fails to attend and execute the written contract. This, on the ground that the purchaser was apparently not ready and willing to purchase the property.
In the case cited, however, the court concluded its opinion as follows: "The defendant insisted upon having a formal contract in writing giving in detail all the terms and conditions of the exchange, and had a right to impose this condition before assenting to a trade, or making himself liable for brokerage. The failure to effect the exchange is not chargeable to any misconduct of the defendant, but is owing to inexcusable absence of New-borg, the proposed purchaser, whom the plaintiff impliedly undertook to produce at the time and place appointed for the execution of the formal contract."
10 Oppenheimer v. Barnett, 131 App. Div. 614 (N. T. 1909).
11 Weiss v. Rubinson, 112 App. D1y. 276 (N. Y. 1906).