Sec. 189. General Statement Of Rule.13

In another case,14 the rule is stated thus: "The rights and duties of a broker employed to secure a loan depend upon the same principles which govern the broker who undertakes to find a purchaser of property, and no substantial distinction can be made. The inquiries in each case are, what did the broker undertake to do! has he completed his undertaking? and if not, is the difficulty and failure attributable to his own act or that of the party by whom he was employed? The loan broker is entitled to his commissions when he has procured a lender who is ready, willing and able to lend the money upon the authorized terms. This done, his duty is performed and he is entitled to compensation whether the loan is consummated or not, unless his right thereto is, by special agreement, made to depend upon conditions which the law does not annex to his engagement as a broker. He assumes no greater or different obligation in respect to title in case of a loan than when employed to make a sale. The borrower, when employing a broker to procure or make a loan for him, always does so upon the implied conditions (if there be no express stipulation in respect to the matter), that he has the ability and will make or tender to the lender a title free from infirmity. It is not the broker's duty, and no part of his engagement, to remove incumbrances, or to cure defects in title, and, if the loan is not effected in consequence of an incumbered or defective title, he is entitled to his commissions. He has performed his contract; the default is with the other party."15

12 Vinton v. Baldwin. 88 Ind. 105. 106 (1882). (citing Lane v. Albright. 49 Ind. 275; Love v. Miller. 53 Ind. 294; 21 Am. R. 192; Reyman v. Mostaer, 71 Ind. 596; Moses v. Blerling. 31 N. Y. 462; 24 Alb. Law J. 536; Mooney v. Elder. 56 N. Y. 238; Hart v. Hoffman. 44 How. Pr. 168; Pickett v. Badger, 1 C. B. (N. S.) 296).

13 See Sec. 185 supra.

14 Peet v. Sherwood, 43 Minn. 448 (1890).

Sec. 190. Further Statement Of Rule.16

In a Missouri case,17 the court thought that the same rule should apply to a loan as to a sale, but the language employed makes it somewhat difficult to determine in which rule the decision should be classed.

In the case referred to, Judge Biggs of the St. Louis Court of Appeals, wrote: "The contract of a real estate broker for the sale of property is that he will secure and produce a purchaser who is willing, ready and able to make the purchase upon the authorized terms. * * * The same rule should govern in engagements by brokers for the negotiation of loans. It is not sufficient in such cases, that the broker has found a person who has the requisite sum of money and is willing to loan it on the security offered; but when his client is informed of this and he signifies a willingness to proceed with the business, it is then the further duty of the broker to produce the lender, or a contract binding the latter to loan the money, and until he does, his contract is not performed. The clause in italics expresses the views of my associates. In that I do not concur. But these latter duties become unnecessary and useless, if the borrower refuses to accept the money or revokes the authority of the broker."

The subject is further illustrated by Fitzpatrick v. Gilson, 176 Mass. 477 (1900), in which the contention was "that a broker who is employed 'to procure a loan ' does not earn his commission unless the money to be borrowed is actually paid over, or a valid contract is made by which the customer procured by the broker agrees to lend the money; and that this applies to a case where (as in the case at bar) the loan is not made because, by reason of a defect in her title, the borrower is not able to give the mortgage she stipulated to give to the customer procured by the broker." The Court said: "We are of opinion that this contention is not correct.

15 Citing Vinton v. Baldwin. 88 Ind. 104; Holly v. Gosling. 3 E. D. Smith 262; Doty v. Miller. 43 Barb. 529: Knapp v. Wallace. 41 N. V. 477; Gonzales v. Broad. 57 Cal. 224; Green v. Reid, 3 Frost & F. 220; Green v. Lucas, 31 Law T. (N. S.) 731; Mechem on Ag.. Sec. 970.

16 See Sec. 185 supra.

17 Hackmann v. Gutweller, 66 Mo. App. at 249 (1896).

"The duty which a broker is employed to perform is to find a customer for that for which his principal directs him to find a customer; in the case at bar, for a loan to be made by the customer, secured by a first mortgage on a specified lot of land, to be made by the principal. The broker found a customer ready to make that loan, and the transaction fell through because the defendant, the broker's principal, did not have a good title to the land in question, that is to say, because of the principal's inability to produce that for which he employed the broker to get him a customer.

"When a broker has found a customer for that for which his principal has employed him to find a customer, the broker has performed his duty, and has earned his commission, or, as the proposition is usually stated, if the person produced by the broker is able, ready and willing to buy, sell or lend, as the case may be, the broker's commission is earned.18

"When the broker has produced a customer, his duty is at an end; so far as his rights or his duty are concerned it is immaterial whether a contract is, or is not made, or, if made, whether it is or is not performed. The broker's right to a commission is no more dependent upon or affected by the fact that a contract is, or is not, drawn up and executed, than it is by the fact that the contract, if drawn up, is, or is not carried into effect. Making or not making a contract with the customer produced, enforcing or not enforcing a contract, if made, are matters for the broker's principal to do or not to do, as his ability and inclination determine; they are matters with which the broker is not concerned and on which his right to a commission is not dependent.

18 Citing McGavock v. Woodllef. 20 How. 221. 222; Green v. Lucas. 33 L. T. (N. S.) 584. 587; Mlddleton v. Thompson. 163 Penn. St. 112; Sibbald v. Bethlehem Iron Co.. 83 N. Y. 378, 383, 384; Duclos v. Cunningham. 102 N. Y. 678; Fischer v. Bell, 91 Ind. 243; Vinton v. Baldwin. 88 Ind. 104, 105; Peet v. Sherwood, 43 Minn. 447. 448; Cheatham v. Yarbrough, 90 Tenn. 77; Budd v. Zoller, 52 Mo. 238, 242; Buckingham v. Harris, 10 Col. 455.

"That it is no part of a broker's duty to draw up and see to the execution of a contract between his principal and the customer produced by him, is settled.19

uThat a broker's right to a commission is not defeated if a contract is made and not carried out by reason of his principal's inability to perform," is stated in the court's opinion on the authorities given in the footnote.20