Sec. 168. Defective Title As Cause Of Failure.10

When the broker procures a party who contracts with his principal, it is no answer to the broker's claim for commissions that the principal is unable to make title,11 unless the broker was apprised of the defective title and undertook, with such knowledge, to find a purchaser.12 Where there is a defect in the vendor's title which is known to the broker, and he assures the vendor that the purchaser will take the property notwithstanding, he is not entitled to commissions when the purchaser later refuses to take the property on account of such defects, these not having been brought to his attention.13

"The law is well settled," says the court in Gerhart

T. Walker, 2 Pickle 569. and dissenting opinion in the same case. 573). See also Dotson v. Milliken. 27 App. D. C. at 514 (1900). (citing: Koch v. F.mmerlinc 22 How. 69; 16 L. E.d. 292: McGavock v. Woodlief. 20 How. 221; 15 L. Ed. 884; Bryan v. Abert. 3 App. D. C. 180. 181; Cheatham v. Yarbrough. 90 Tenn. 77, 79; 15 S. W. 1076: Washburn v. Bradley. 169 Mass. 86. 88: 47 N. E. 512: Holden v. Starks. 159 Mass. 503; 38 Am. St. Rep. 451; 34 N. E. 1069; Knapp v. Wallace. 41 N. Y. 477; McFarland T. Llllard. 2 Ind. App. 160, 166; 50 Am. St. Rep. 234; 28 N. E. 229).

7 Goldberg v. Gelles. 33 Misc. 793 (N. Y. 1901); Branch v. Moore, 105 S. W. 1180 (Ark. 1907): Purdv v. Wilson. 108 S. W. 1124 (Mo. 1908).

8 Miller v. Barth. 88 Misc. 372 (N. Y. 1901). See also Sec. 150 supra.

9 Flynn v. Jordal. 124 Iowa 458 (1904).

10 See Sec. 166 supra as to scope of chapter. ___

11 Knapp v. Wallace. 41 N. Y. 477 (1869): Parker v. Walker. 86 Tenn. 572 (1888): Tackett v. Powley. 130 111. App. 99 (1906); Gillespie v. Dick, 111 S. W. 004 (Tex. 1808): Phinizy v. Bush. 129 Ga. 486 (1907).

12 Parker v. Walker, supra.

╣│Hynes v. Brettelle, 70 Mo. App. 344 (1897).

v. Peck, 42 Mo. App. 651 (1890), "that when the owner of land employs a real estate agent to negotiate a sale only, it is always implied that the owner has a good title to the land. The agent, by his agreement to negotiate a sale, assumes no obligation in reference to the title unless it was made a part of his duty to have the title examined before attempting to effect a sale. Therefore, in such a case, if the agent finds and produces a purchaser, ready and willing to buy according to the owner's terms, or if he procures a valid contract from a solvent buyer and the sale is not effected in consequence of a defect or apparent defect in the title, and the owner refuses or declines to take any steps to remove the defect or cloud, or to produce to the purchaser evidence that the title is not in fact faulty, then the agent is entitled to his commissions the same as if he had consummated the sale."

And where the broker brings about an exchange, the party employing him cannot resist a claim for commission on the ground that the title of the other party to the exchange is defective and he is therefore unable to perform the contract.14

In some of the states, contracts of sale provide that if the purchaser finds any defects in the title the vendor shall have a specified time to remedy them, if that can be done.15