Sec. 134. Acceptance By Owner Of Different Terms

Where the broker does not accomplish the precise thing which he was employed to do, but what he did is accepted by the owner as being satisfactory, the broker is entitled to commission.14

If the broker negotiates a contract different from that prescribed by his employer and the employer subsequently ratines it, and thus a contract is finally made which is satisfactory to him, then the broker has earned his commission.15 This applies where the broker has acted in good faith, and the contract made is either signed by the employer himself or is approved or ratified by him.18 It has been said, however, that " the mere approval of the contract made by the broker where it is substantially different from the contract he was employed to make, cannot of itself be held to be an acceptance by the owner as performance of the broker's obligation."17

12 Also citing Gazley v. Price, 16 Johns, 267; Ketchum v. Evertson, 13 Johns 359; Potter v. Tuttle. 22 Conn. 512. See also Sec. 160 infra.

13 Logan v. McMullen, 87 Pac. 286 (Cal. 1906).

"Davis v. Weber, 46 Misc. 591 (N. Y. 1905); Curry v. Fetter, 15 Ky. Law Rep. 494 (1893); Hoadley v. Savings Bank. 44 L. R. A. 350 (1899); Davis v. Gassette, 30 111. App. 44. 45 (1888); McFarland v. Lillard, 2 Ind. App. 167 (1891); Reid v. McNerney, 128 Iowa 350 (1905). (citing Welch v. Young. 79 N. W. 59; Grether v McCormick. 79 Mo. App. 325; Henry v. Stewart, 85 111. App. 170; Hubachek v. Haz-zard, 83 Minn. 437; 86 N. W. 426; Hafner v. Herron. 165 111. 242; 46 N. E. 211).

15 Lapsley v. Holridge, 71 111. App. 052 (1897); Snyder v. Fearer, 87 111. App. 275 (1899) ; Levy v. Wolf, 84 Pac. 313 (Cal. 1905), (citing Gelatt v. Ridge, 117 Mo. 653; 23 S. W. 882; Jones v. Adler, 34 Md. 440).

16 Gilder v. Davis, 137 N. Y. 506 (1893).

17 Reiger v. Bigger, 29 Mo, App. 42b (1888).

SALE MUST BE ON EMPLOYER's TERMS. 145

Sec. 135. Broker's Commission, If He Is "Procuring Cause," Not Affected By Variation Of Terms

It is not essential to entitle a real estate 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 demanded, the broker is entitled to his commissions.18 Where the parties are brought into communication through the broker's agency, the principal by negotiating with the purchaser on different terms, waives the terms given to the broker.19

"The principal possesses an undoubted right to adhere to the price and terms originally fixed, but if he deviates therefrom and consents to a modification thereof, and thereupon concludes the sale with the person procured by the broker, he ratifies the latter's departure from his instructions and is liable for the commission."20

If the broker is the procuring cause, although the owner makes the sale at a less sum than the broker was authorized to sell for, he is liable to the broker for commissions, and if not for the full sum agreed upon, at least for compensation for the reasonable value of his services.21