An owner may employ several brokers for the sale of the same property and is liable for commissions only to the broker who effects the sale. (Sec. 237.) Although an owner employs several brokers, he may negotiate and sell the property himself without liability for commissions. (Sec. 238.)
If the owner gives an exclusive agency, he subjects himself to liability for breach of contract if he engages or avails himself of the aid of another broker for the same purpose, but the owner himself may negotiate personally unless he has also precluded himself from so doing. (Sec.239.)
If while the broker is negotiating, the owner intervenes and concludes the sale, the broker is still entitled to his commissions. (Sec. 240.) But if the broker's efforts fail or his authority is in good faith terminated, the owner is not precluded from negotiating thereafter with purchasers who were introduced by the broker. (Sec. 241, 242.)
"An owner may employ several brokers for the sale of the same property, and is of course only liable for commissions to the one who effects the sale."1 "A person may place his property with as many brokers to sell as he sees fit, but it is only the one who produces a buyer, ready and able to purchase on the employer's terms, that becomes entitled to commissions." 2
The employment of one broker does not disable the owner from employing another, or from negotiating a sale in person, since the right of the principal to do in person or by another that which he has empowered his agent to do, is an implied condition of every agency.3 The owner does not agree that he will not during the time sell the property himself or through the agency of another broker.4 Where the agency is not exclusive5 the mere fact that property is left in a broker's hands to sell does not preclude the owner from selling it aside from the broker.6 The owner may always in good faith sell independent of the broker unless he has agreed not to do so.7 And if he sells the property himself, he is not liable to any one for commissions.8
If the owner employs a broker with the understanding that the latter's agency shall be exclusive, the owner subjects himself to liability for breach of contract if, notwithstanding, he engages or avails himself of the aid of another broker for the same purpose.9 But the owner himself may negotiate personally, unless his agreement with his broker precludes him also from so doing.10 But while a broker may have the exclusive agency to sell, there is nothing in that fact, unless the agreement so provide, which entitles him to commissions, unless he is the procuring cause of the sale.11
1 Sussdorff v. Schmidt, 55 N. Y. 321 (1873); Hoadley v. Sav. Bk.. 71 Conn. 599 (1899) ; Cook v. Forst, 116 Ala. 396 (1896). See also Chap. IX supra.
2 Freedman v. Havenmeyer, 37 App. Div. 518 (N. Y. 1899).
3 Levy v. Rothe, 17 Misc. 403 (N. Y. 1896). (citing Chilton v. Batler, 1 E. D. Smith (N. Y.) 150; Goldsmith v. Cook. 39 N. Y. St. Rep. 57; Dole v. Sherwood. 5 Law. Rep. Ann. 720). See also Rothenlmrger v. Schonlger. 99 S. W. 1150 (Ky. 1907).
4 Briggs v. Boyd, 56 N. Y. 294 (1874) ; Hoadley v. Savings Bk., 71 Conn. 599 (1899); Kimball v. Hayes, 199 Mass. 520 (1908).
5 See Sec. 239 infra.
6 cole v. Kosch. 116 App. Div. 718 (N. Y. 1907); Armstrong v. Wann, 29 Minn. 126 (1882); Dolan v. Scanlan, 57 Cal. 265 (1881).
7 Burch v. Hester, 109 S. W. 399 (Tex. 1908) ; Cook v. Forst, 116 Ala. 396 (1896); Humphries v. Smith, 5 Ga. App. 343 (1908).
8 Sussdorff v. Schmidt, 55 N. Y. 321 (1873); Slbbald v. Bethlehem Iron Co., 83 N. Y. 384 (1880); Hoadley v. Savings Bk., 71 Conn. 599 (1899).