When several brokers are employed on the same property, the broker who in good faith and without collusion consummates the sale is entitled to the commission. (Sec.97,98.)
If a broker abandons his negotiations, the employer may subsequently sell to the same person without liability to the broker for commissions. (Sec. 101.)
Under the rule which prevails in most jurisdictions, to recover commissions, the duly employed broker must show that he either procured a contract of sale, or that he produced an available purchaser who was ready, willing and able to purchase on his employer's terms. (Sec.102.)
As stated more fully hereafter,1 the rule which prevails in most jurisdictions is that a duly employed broker is the "procuring cause" and entitled to commissions either when he secures a contract of sale or produces a purchaser ready, willing and able to purchase on his prin-cipaPs terms.
A typical case is that of Kiernan v. Bloom, 91 App. Div. 429 (N. Y. 1904). 2 Here it was agreed that the broker should advertise the owner's place in the broker's name; that the inquiries should be attended to by the broker and that the owner would pay a commission if a sale resulted. A purchaser had his attention drawn to the advertisement and wrote the broker asking for details. The broker arranged a meeting between his representative and the purchaser, and within a day or two after this interview, in which the broker's representative described the property and advised the purchaser to buy, the purchaser opened negotiations personally with the owner, which resulted in his purchasing the property. The matter of the purchase and the sale had not been discussed before between the owner and the purchaser and no other agency at any time intervened to induce the purchaser to open negotiations. The purchaser did not disclose to the broker or his representative that he had previously seen the property nor did he mention the broker or his representative to the owner. The broker did not introduce the purchaser to the owner, and he was not present when the sale was consummated.
In passing upon this case the court said: "The sale was effected through the plaintiff's (broker's) agency as the procuring cause; his communications with the purchaser were the cause and means of bringing him and the defendant (owner) together, and a sale resulted in consequence of his efforts. He is, therefore, entitled to his commissions. It is of no consequence that the plaintiff did not negotiate the sale in person, and was not present at the sale; nor that the purchaser was not made known to the defendant as the plaintiff's customer, for he was so in fact. The plaintiff's right to commissions is in no way affected by proof that the defendant himself negotiated the sale, nor by the fact that the purchaser was not introduced to the owner by the plaintiff. In full compliance with his agreement he procured a purchaser, who took the property on the owner's terms. His commissions were, therefore, earned."
1 See Sec. 117 infra.
² See also Branch v. Moore, 105 S. W. 1178 (Ark. 1907).
It is not essential, to entitle a broker to commissions, that he should have procured a purchaser upon the precise terms first named by the principal at the time of employment; for if, through the instrumentality of the broker, the buyer and seller meet, and negotiations are thus opened up between them, which, continuing without withdrawal of either party therefrom, culminate in a sale, though for a less sum than originally named, the broker is entitled to his commissions.3
And in Southwick v. Swavienski, 114 App. Div. 681 (N. Y. 1906), it was held that where a broker duly employed, is the cause of bringing the purchaser and owner together, he is entitled to his commissions although the sale is consummated subsequently by the owner himself on different terms.4