Sec. 169. Special Agreements As To Title.16

The owner of property may engage the broker under such an arrangement as to relieve himself from liability for commissions in case his title is defective, or in case the purchaser refuses or fails to carry out the contract,17 but if the broker is employed to find a purchaser without any statement by the principal with respect to his title, and the broker has no personal knowledge of its character, the broker has a right to assume that the title is unobjectionable and to negotiate a sale upon that assumption.18

14 Kalley v. Baker, 132 N. Y. 1 (1892). Sec also "Commissions on Exchanges," Ch. XVIII infra.

15 See the various forms of contracts of sale in Ch. XXXIX, infra. 16 See Sec. 166 supra as to scope of chapter. "Flower ▼. Davidson, 44 Minn. 49 (1890).

If the principal reveals to the broker the real state of his title, and it is agreed that the broker shall not be paid commissions unless he finds a purchaser who will take such title as the principal can make, the broker cannot recover unless he complies with this requirement.

The opinions of lawyers, conveyancers or title guarantee companies on the marketability of a title are not admissible.19 This is because the marketability of the title is a question of law for the court to determine. But lawyers' opinions are admissible on the validity of a title to property located in another state.20 This is so, because what the law is in another state is regarded as a question of fact upon which the court must have evidence before it may make a determination.

Sec. 170. Special Causes Of Failure.21

When a broker, duly employed, procures a customer to whom his employer agrees to sell, he is entitled to recover commissions, notwithstanding the fact that thereafter the employer refuses to enter into a formal contract of sale because a building upon the land intended to be conveyed encroaches upon adjoining land.22

Also when the broker produces a purchaser at the price asked by the owner, he is entitled to commissions even though a contract of sale is not entered into, this failure resulting from the refusal of the owner to sign unless a provision were inserted providing for the payment of a forfeiture in case he could not carry out the contract,23 or resulting from the owner's refusal to sell.24 Nor can the broker's claim be defeated by the whimsical or unreasonable refusal of the seller to comply with his contract.25

18 Cheatham v. Yarbrough, 90 Tenn. 77 (1891).

19 Moser v. Cochrane, 107 N. Y. 35 (1887); Hess v. Eggers, 37 Misc. 846 (N. Y. 1902). (citing Gatling v. Central S. V., 67 App. Div. 50 (N. Y. 1902) ).

20 Barber v. Hildebrand, 42 Nebr. 407 (1894).

21 See 6 166 supra as to scope of chapter.

22 Cusack v. Aikman, 93 App. Div. 579 (N. Y. 1904); Brackenrldge v. Clarldge. 43 L. B. A. 595 (1898).

The rule that where a party gives a reason for his conduct and decision, he cannot after litigation has been begun, change his ground and put his conduct on another and a different ground, applies only to defects in form and matters of detail, - objections which a party could easily, and, it is to be presumed, would have removed had they been objected to, so that an after insistence upon them is an injustice, they not being of the substance of the contract. Therefore, when a principal did not put his refusal to accept an offer upon the ground that it was not in accordancewith the terms he had given the broker, he may still insist that the broker did not prove an offer in accordance with the terms given him.26

23 McQuillen v. Carpenter, 72 App. Div. 595 (N. T. 1902).

24 Caruthers v. Reesor, 134 111. App. 370 (1907).

25 Crockett v. Grayson. 98 Va. 357 (1900), (citing McGavock v. Woodlief, 20 How. 221; Koch v. Emmerling, 22 How. 69; Tombs v. Alexander, 101 Mass. 255). See also Sec. 150 supra.

26 Rand v. Cronkrite, 64 111. App. 223, 224 (1896). See also Sec. 193 infra.