Sec. 136. Requirements As To Price

If a price is fixed, the broker must procure a purchaser at that price.22 And where the broker produces a purchaser at the price asked by the owner, the latter cannot then impose new conditions.23 Where nothing is said, the presumption is that the sale is to be for all cash.24

18 Robbs v. Edgar, 23 Misc. 618 (N. Y. 1898) ; Jones v. Henry, 15 Misc. 152 (N. Y. 1895). (citing Levy v. Coogan, 16 Daly 137 (N. Y. 1890); Gold v. Serrell. 6 Misc. 124 (N. Y. 1893) ).

19 Davis v. Gassette, 30 111. App. 44, 45 (1888). ____ _

20 Jones v. Henrv. supra; Hafner v. Herron, 165 111. 246, 247 (1897); Hantemer v. Arent, 16 S. D. 465 (1903).

21 Hancock v. Stacy, 116 S. W. 177 (Tex. 1909).

23 See Howell v. Denton, 68 S. W. 1002 (Tex. 1902).

Where it is agreed that the broker shall have commissions if he furnishes a purchaser at a fixed price, he is not entitled to compensation under the agreement for furnishing a purchaser at a less price.25 In such a case, it has been said that the broker cannot recover proportionate commissions on the lesser sum, or what his services were reasonably worth, when he did not declare on a quantum meruit.26 But it has been held, however, that if one sues to recover compensation which is fixed in amount by agreement, he may recover upon quantum meruit if he fails to establish his alleged agreement. The matter is one of pleading and proof and further comment would carry the discussion too far from the present subject.

While the price is almost always fixed by the seller, yet if no price is fixed, it has been said, though perhaps incorrectly, that the broker would probably have the power to fix the price,27 but it is quite settled that where no price is fixed, the broker takes the hazard of producing a purchaser willing to purchase at a price satisfactory to the seller.28 A real estate broker has no authority to fix the price.29 Evidence of the entry of the price asked, made in the broker's books in the presence of the principal, is admissible as part of the res gestae.30

Sec. 137. Increase Of Price By Owner

Where an owner places property in the hands of a broker and fixes a price, he has the right subsequently to increase the selling price, but until notice is given to the broker of the change in the price, he is justified in continuing his efforts for a sale at the price first fixed and is entitled to his commission whenever he obtains a purchaser who is willing to take the property on the terms which his principal prescribed.31

23 McQuillen v. Carpenter, 72 App. Div. 595 (N. T. 1902).

24 Emery v. Atlanta Exch., 88 Ga. 325 (1891).

25 Cook v. Forst, 116 Ala. 396 (1896).

26 Stelnfeid v. Storm, 31 Misc. 167 (N. Y. 1900).

27 Law of Contracts, Special Topics, West Pub. Co. (1896), Topic "Brokers," p. 9.

28 See Sec. 138, 147 infra.

29 Kilhan v. Wilson. 112 Fed. 569 (1902).

30 Monroe v. Snow, 131 111. 132 (1890).