Sec. 138. Time Of Performance

The broker must procure a purchaser during the term of his employment. Where no definite time is fixed the broker has a reasonable time in which to effect a sale.32 What is a reasonable time when the facts are undisputed and different inferences cannot reasonably be drawn from the same facts, is a question of law.33

A broker employed to sell land within a specified time, is entitled to his commission where he procures within such time a purchaser who is willing to buy, and communicates such fact to the owner; and the latter cannot, by deferring the time of meeting with such purchaser until after the expiration of the agent's term of employment, defeat his right.34 And where the broker is limited in time, and the principal and the proposed purchaser found by the broker, by mutual consent, delay the consummation of the transaction until after the expiration of the broker's time limit, the broker is entitled to commissions.35

And it has been held that the broker is entitled to compensation even though he did not bring the parties to terms within the time limited by the principal, but about a week or more thereafter.36 And so, where brokers are employed to purchase property, a delay of two years for the purpose of curing the title will not defeat the recovery of commissions if a deed is finally accepted by the purchaser and the steps of the transaction are connected.37

31 Van Siclen v. Herbst, 30 App. Div. 255 ( N. Y. 1898).

32 Donovan v. Weed. 182 N. Y. 43 (1905); Rand v. Cronkrlte, 64 III. App. 224 (1896). See also Sec. 82-86 supra.

33 Wright v. Bank of Metropolis. 110 N. Y. 237 (1888).

34 Vanderveer v. Suydam. 83 Hun 116 (N. Y. 1894); affd, 151 N. Y. 673 (1896) on opinion below; Levy v. Wolf, 84 Pac. 315 (Cal. 1905).

35 Humphries v. Smith, 5 Ga. App. 342 (1908).

36 Griswold v. Pierce, 86 111. App. 406 (1899).

"Where the owner of property employs a broker to bring him an offer for the purchase of it without naming a price at which he is willing to sell, - that is to say, where the owner of property employs a broker to bring him an offer which he is to pass upon after it is brought to him, - there can be no implied agreement or understanding that the broker is to be entitled to a reasonable time in which to procure such an offer; in such a case, the owner has a right to reject every offer brought to him, as was held in Walker v. Tirrell, 101 Mass. 257; and it is plain that under those circumstances he could decide not to accept any offer and dismiss the broker altogether."38

Sec. 139. Liability Of Broker For Failure To Sell

"The broker's engagement is to use his efforts to find a purchaser while his employment as broker endures, but he does not agree to find a purchaser within any specified time, or at all." 39 "If, while still employed, he finds one at the seller's terms, he is entitled to his commissions, but the question of the reasonableness of the time which he has taken does not affect the performance of any contract upon his part. The lapse of time between the day of employment and the production of a purchaser may have a bearing upon the duration of the employment itself, since an unreasonable delay may import an abandonment upon the broker's part, upon which the principal may rely, or would justify the principal's termination of the employment, as against an imputation of bad faith; an abandonment, however, equally with an express termination of the employment, is matter of defense and has not to be negatived by the plaintiff in the course of his proof to support a cause of action for commissions. * * As we have indicated, the broker does not sue upon his performance of his own promise to find a purchaser (thus importing performance within a reasonable time as an element of his own case); the promise is wholly the principal's and the broker avails himself of it with the hope of the reward thus held out for his successful efforts. But the promise is for a reasonable time, and, if the broker's success is delayed unreasonably, he may be met with the assertion that the time has run." 40

37 Michaels v. Gahren, 9 App. Div. 495 (N. Y. 1896). See also Sec. 139 infra.

38 Cadigan v. Crabtree, 179 Mass. 480 (1901); s. c. on further appeal, 186 Mass. 7 (1904).

39 Moore v. Boehm, 45 Misc. 622 (N. Y. 1904) ; Attix v. Pelan, 5 Iowa 341, 342 (1857) ; Glover v. Henderson, 120 Mo. 379 (1893).

But if the broker expressly contracts to sell property within a specified time for a specified amount, he may be liable for failure to do so.41

4o Moore v. Boehm, 45 Misc. 622 (N. Y. 1904). In Young v. Rnhwedel, 119 Mo. App. 241 (1906), it is said that the consideration Is the agreement of the broker to perform the services required by the terms of the employment.

41 Dunn v. Mackey, 80 Cal. 104, 107 (1889).