When the contract of sale is executed, the broker has earned his commission (Sec. 172), except in a few jurisdictions where the performance of the contract is held essential to entitle the broker to commissions (see Sec. 117-119 supra), or where the broker has made a valid and binding agreement to some other arrangement. (See Sec. 227-235 infra.)
The authorities are quite unanimous that the right of the broker to his commissions does not depend upon the performance of the contract by the purchaser. (Sec. 172.)
But where the purchaser abandons the broker or refuses to deal through him, he is not entitled to commissions. (Sec. 173.)
Whether the broker is entitled to commissions where the sale is not completed, but would have been completed but for the misrepresentations of the vendor, quere. (Sec. 174.)
"The general rule is that when a broker employed to negotiate a sale of real estate brings to his employer a responsible purchaser willing to buy upon the terms prescribed, he has earned his commissions.1 Where the contract of sale is executed between the employer and the purchaser, the right of the broker to his commissions does not depend upon the performance of the contract by the purchaser.2 If from a defect in the title of the vendor, or from a refusal to consummate the contract on the part of the purchaser for any reason in no way attributable to the broker the sale falls through, nevertheless the broker is entitled to his commissions for the simple reason that he has performed his contract." 3
¹ But see Sec. 117-119, 157, 166 supra.
If the vendor enters into an enforceable contract of sale with the purchaser, the failure of the purchaser to carry out the contract does not deprive the broker of his right to commissions.4 But where the broker, knowing of defects in the title, fails to bring these to the attention of the purchaser, and assures the vendor that the purchaser will take the property notwithstanding the defective title, he is not entitled to commissions when the purchaser refuses to consummate the purchase on account of these defects. 5
Where a broker presents the name of a customer, and the customer through no fault of the owner of the property, refuses to enter into any negotiations through such broker, the latter is not entitled to commissions if the premises are thereafter sold to the same customer through another broker.6
In Oppenheimer v. Barnett, 131 App. Div. 617 (N. Y. 1909), it is said that where the owner's broker calls the attention of a person to the fact that property is for sale, that in no way obligates such person to make the purchase through him; on the contrary, such person may-go directly to the seller and make the best trade he can with him, or he may purchase through some broker whom he selects himself. In either case, the broker whom the seller had originally employed would have no cause for complaint against the purchaser or against the broker to whom the seller paid the commissions. If the broker is entitled to commissions at all, it is from the seller, and if the broker is the procuring cause of the sale, he must look to him and not to the purchaser. The purchaser of real estate is not obliged to see that a broker employed by the seller gets the commissions to which he claims he is entitled.
² Tackett v. Powley, 130 111. App. 100 (1906).
³ Gilder v. Davis, 137 N. Y. 506 (1893); and see note in Lunney v. Healey, 44 L. R. A. 623 (1898).
4 Pinkerton v. Hudson, 113 S. W. 35 (Ark. 1908). Cf. Sec. 117-119 supra. 5 Hynes v. Brettelle, 70 Mo. App. 344 (1897). 6Sampson v. Ottinger, 93 App. Div. 226 (N. Y. 1904).
Where the sale would have been completed but for the misrepresentations of the vendor, the broker has been held entitled to his commission.7
On the other hand, where the broker was familiar with the property and the owner misstated the dimensions, and the proposed buyer, after making a deposit, refused to enter into a contract, because the dimensions were less than stated, the broker was denied commissions.8 And where the owner stated the frontage of the lot, and it turned out that the frontage was less than stated and the purchaser produced by the broker refused to make contract on account of such shortage, the broker was held not entitled to commissions, the Second Department of the Appellate Division of the New York Supreme Court holding that it was the broker's duty to procure a purchaser for the plot "just as it was."9
7 Gillespie v. Dick. Ill S. W. 664 (Tex. 1908): Dotson v. Mtlllken. 209 U. S. 237 (190S); Goodman v. Hess. 56 Misc. 482 (N. Y. 1907). misstatement of rents; and see Crockett v. Gravson. 98 Va. 357 (1900). and Hugill v. Weekley, 15 L. R. A. (N. S.) 1262: s. c. 61 S. E. 360 (W. Va. 1908).
8 Hausman v. Herdtfelder, 81 App. Div. 46 (N. Y. 1903).
9 Keougn v. Meyer, 127 App. Div. 273 (N. Y. 1908).
And in another New York case,10 it was said that there is no duty on the part of a real estate owner to inform a broker as to whether there are covenants as to nuisances in his chain of title, unless he is asked about it, and that it is the duty of the broker to ask, if he wants to know.11
¹° Ranger v. Lee, 66 Misc. 144 (N. Y. 1010).
11 See Sec. 168 supra as to the vendor's liability for commissions where the consummation of the sale is prevented by the defective title of the vendor. For a general discussion of misrepresentations, see Part IV, " Fraud," Sec. 279 et seq.