Sec. 242. Rule When Broker's Efforts Fail

In Schano v. Storch, 56 Misc. 484 (N. Y. 1907), the Appellate Term stated the rule thus: "Where a broker's efforts fail, his employer is not precluded from thereafter negotiating with the purchaser found by the broker, even on the same terms, and the mere fact that the broker's efforts may have led to subsequent negotiations, which, under more favorable circumstances, resuited in a sale, does not alone entitle the broker to a commission."17

15 Smith v. Kimball, 193 Mass. 585 (1907) ; West End Dry G. S. v. Maun, 133 111. App. 550 (1907); Fairchild v. Cunningham, 84 Minn. 524 (1901); Markus v. Ken-neally, 43 N. Y. Suppl. 1056 (1897).

16 Conn v. Lee. 132 App. Div. 697 (N. Y. 1909).

But it is evident that this only applies where the broker's efforts have ended in failure. After the broker's failure to bring about a sale, or after his authority is fairly and in good faith terminated, others may to some extent avail themselves of the fruits of his labors. In such case the principal may sell to the first party who offers the price asked and it matters not the sale is to the very party with whom the broker had been negotiating.18 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."19

17 See also West End Dry G. S. v. Maun, 133 111. App. 550 (1907).

18 Hoadley v. Savings Bk., 71 Conn. 599 (1899); Emery v. Atlanta Exch., 88 Ga. 329 (1891), (citing Livezy v. Miller, 61 Md. 336; Lipe v. Ludewlck, 14 111. App. 372; and others).

19 Sibbald v. Bethlehem Iron Co., 83 N. Y. 383, 384 (1880).