Sec. 165. General Statement

If, after the broker performs his obligation, the seller is unable to consummate the sale, or refuses to do so, the broker is nevertheless entitled to his commissions. (Sec. 166-170.)

Sec. 166. The Broker's Obligation

Here, as in the preceding chapter, it must be kept in mind that there is a conflict in the decisions as to what amounts to a performance of the broker's obligation. Briefly, the difference is this, - some cases hold that the broker must procure an enforceable contract of sale before he has earned his commissions, while others hold that the broker has earned his commission when he produces a purchaser ready, willing and able to purchase on his principal's terms. The latter may be regarded as the prevailing rule.

Some of the cases even go so far as to hold that the broker is not entitled to his commissions unless the sale is actually accomplished by the delivery of the deed of the land from the vendor to the vendee and the payment of the purchase money by the latter, or unless it is proven that the sale is prevented by the fault of the vendor.1

These conflicting views are thus briefly referred to in order that the statements of the present chapter may be considered accordingly, and so that the authorities given may not be confused and the attempt be made to apply them in jurisdictions where the prevalence of one or the other of the rules set forth might make these authorities inapplicable.

See Sec. 117-119 supra and footnotes thereto.

Sec. 167. General Rule As To Failure Of Principal To Complete.2

If, after the broker produces a purchaser ready and willing to purchase the property upon the terms fixed by the seller, the seller is unable to consummate the contract or refuses to do so, the broker is nevertheless entitled to his commissions.3 The broker's right to commission is not to be defeated by any default of the principal.4 " If defendants (the owners) employed plaintiffs (the brokers) to find a purchaser for this property, the compensation was earned when they produced the purchaser upon the prescribed terms, and the inability of defendants to convey was an independent matter, for which they, and not plaintiffs, were responsible. The cases are uniform in this respect." 5

"The just and well-settled rule of law requires that the agent shall be paid his compensation when he procures a purchaser who is acceptable to the principal, and ready, able and willing to buy on the agreed terms, though in fact the sale be not ultimately consummated, provided its consummation is prevented by the fault, refusal or defective title of the principal." 6

2 See Sec. 166 supra as to scope of chapter.

3 Mooney v. Elder, 56 N. Y. 238 (1874); Brackenridge v. Claridge, 43 L. R. A. 593 (1898); Ayres v. Thomas, 116 Cal. 143 (1897); McDermott v. Mahoney, 115 N. W. 37 (Iowa 1908); King Powder Co. v. Dillon, 96 Pac. 441 (Colo. 1908).

4 Ryer v. Tnrkel, 70 Atl. 72 (N. J. 1908).

5 McLaughlin v. Wheeler, 1 S. D. 521 (1891), (citing Hamlin v. Schnlte, 34 Minn. 534; 27 N. W. Rep. 301; Mooney v. Elder, 56 N. Y. 238; Hannon v. Moran, 71 Mich. 261; 38 N. W. Rep. 909).

6 Cheatham v. Yarbrongh. 90 Tenn. 79 (1891). (citing Mech. on Agency. Sec. 966, 967; 2 Am. & Eng. Ency. of Law, 578, 581; 2 Add. on Contracts (Morg. Ed.), Sec. 931; McGavock v. Woodlief, 20 How. (U. S.) 221; Koch v. Emmerling, 22 How. (U. S.) 69; Frazer v. Wyckoff, 63 N. Y. 448; Cook v. Fish. 12 Gray 493; 88 Ind. 104, (s. c, 45 Am. R. 447); 57 Cal. 224; 31 Md. 270; Gilchrist v. Clarke, 2 Pickle 585; Parker

That the seller's wife refused to consent to the arrangement cannot deprive the broker of commissions, if the general requisites of an earned commission exist.7 And when the broker produces a purchaser able and willing to perform, who is accepted by the seller, the seller cannot escape payment of the commission by thereafter declaring the deal off.8

And it has been said that where no sale is actually consummated, the broker must either have procured a valid obligation to buy, or have brought the proposed purchaser and the vendor together, so that a contract of sale might have been entered into if the latter so elected.9