A broker, employed to make a sale under an agreement for the exclusion of all other agencies, is entitled to his commissions when he produces a party ready to purchase at a satisfactory price,20 and the principal cannot avoid liability for such commissions by negotiating a sale through another broker.21 And where a broker is given the exclusive agency to sell property, as for instance a large plot of lots, the owner is liable in damages if he breaks the agreement.22
"A party having employed a broker to sell real estate, may, notwithstanding, negotiate a sale himself; and if he does so without any agency of the broker, is not liable to him for commissions. To earn his commissions the broker must be an efficient agent in, or the procuring cause of the contract.23 His commission is earned by finding a sufficient purchaser, ready and willing to enter into a valid contract for the purchase upon the terms fixed by the owner, and having introduced such a one to the owner as a purchaser, is not deprived of his right to commission by the owner negotiating the contract himself."24 .
20 See Sec. 117-119 infra as to conflicting views concerning when broker is the procuring cause of a sale. As to exclusive agency, see Sec. 239 infra. ²¹Moses v. Bierling. 31 N. Y. 462 (1865).
22 Barthrick v. Coffin, 13 App. Div. 101 (N. Y. 1897); Attix v. Pelan, 5 Iowa 344 (1857).
23 The owner may always in good faith sell Independent of the broker unless he has agreed not to do so. Burch v. Hester, 109 S. W. 399 (Tex. 1908) ; Cook v. Forst, 116 Ala. 396 (1896) ; Humphries v. Smith, 5 Ga. App. 343 (1908). See also Sec. 238 infra.
A contract employing a broker to sell lands and giving him commissions "in case of the sale or conveyance of said property at any time within one year from this date," should not be construed to mean that the broker was entitled to commissions if the property were sold by the owner without the aid of the broker, but, on the contrary, only entitles the broker to commissions if he was instrumental in bringing the owner and purchaser together.25
"In Wylie v. Bank, 61 N. Y. 416, it is held that, to entitle a broker to recover, he must be the efficient agent or the procuring cause of the sale. The means employed by him, and his efforts, must result in the sale. He must find the purchaser, and the sale must proceed from his efforts, acting as broker; and where a broker opens negotiations, but, failing to bring the customer to the specified terms, abandons them, and the employer subsequently sells to the same person at the price fixed, he is not liable to the broker for commissions.26 Although in Hay v. Platt, 66 Hun 488, 21 N. Y. Suppl. 362, the principal had subsequently dealt directly with the party brought to his notice by the broker, and sold at the same price he had been willing to sell for originally, the broker was not allowed to recover. This upon the ground that where the broker fails to produce a customer ready and willing to enter into a contract upon the terms of his principal and abandons further efforts the principal violates no right of the broker in negotiating with the proposed purchaser directly and independently. In Douglass v. Halstead, 81 Hun 65, 30 N. Y. Suppl. 592, a broker had been negotiating a sale and was compelled to stop before reaching a consummation by the circumstance that the purchaser at the time wanted another piece of property in addition to the defendant's. Another broker conceived the idea of a partition suit to bring about a sale of the other piece required, and commission was finally paid him on the sale. The court (at page 69, 81 Hun, and page 594, 30 N. Y. Suppl.) said: 'While it is unfortunate for the plaintiff that he should have been "so near and yet so far" from the accomplishment of his purpose, the fact remains that the evidence justified the determination of the referee that the plaintiff did not at any time find a purchaser, and produce him to his principal, ready and willing to purchase the real estate upon its terms * * and this much was necessary for him to do in order to recover.' " 27
24 McClave v. Paine, 49 N. Y. 561 (1872). (citing Lyon v. Mitchell, 36 N. Y. 235; Barnard v. Monnot, 3 Keyes (N. Y.) 203; Moses v. Bierling, 31 N. Y. 462; Red-field v. Tegg, 38 N. Y. 212).
25 Parkhurst v. Tryon, 134 App. Div. 843 (N. Y. 1909).
26 See Sec. 241, 242 infra.
But "if the efforts of the broker are rendered a failure by the fault of the employer; if capriciously he changes his mind after the purchaser, ready and willing, and consenting to the prescribed terms, is produced; or if the latter declines to complete the contract because of some defect of title in the ownership of the seller, some unremoved incumbrance, some defect which is the fault of the latter, then the broker does not lose his commissions." 28
In order to recover commissions, the broker must: (1) Show that he was employed; (2) be the procuring cause of the sale; (3) bring about the deal on the terms of his employer; (4) act in good faith; (5) produce an available purchaser, which under the general rule is one ready and willing to purchase and also legally able to do so; (6) bring about a completed transaction.
27 Hartal v. Kenneally. 19 Misc. 517; 43 N. Y. Suppl. 1057, 1058 (1897). 28 Slbbaid v. Bethlehem Iron Co., 83 N. Y. 383, 384 (1880).