The broker must be the procuring cause of the sale.11
A mere "paper offer" to buy is not sufficient. The broker must show that his proposed purchaser was ready, willing and able to carry out the offer.12
"To entitle a broker to sell or to find a purchaser of real estate, to recover commissions, where no contract of sale is executed by his employer and the purchaser, it is incumbent upon him to show not only that he procured a person who was ready, willing and able to purchase the property upon the terms authorized by his employer, but also that his employer was advised of that fact and given an opportunity to complete the sale to the proposed purchaser, and that the sale was not consummated because of his employer's default. The mere fact that the broker found a willing and capable purchaser is not enough. It is obvious that he is not entitled to compensation for such services unless his employer is afforded an opportunity to receive the benefits of them."13
It may be said generally, that the broker's right of recovery is not dependent upon the knowledge of the principal that the purchaser came to purchase in consequence of information obtained through the broker.14
There is "a line of cases, of which Sussdorff v. Schmidt15 is a leading one, in which a broker has been held to be entitled to a commission, if he is in fact the procuring cause of the sale, even though he did not actually bring the parties together, and was not present when the sale was consummated. That a broker may under such circumstances be entitled to compensation is not to be doubted, but to justify a recovery in such a case it must be made abundantly clear that the broker was the efficient agent or procuring cause, not alone of directing the purchaser's attention to the property, but of effecting the sale. He must not only find the purchaser, but the sale must proceed from his efforts acting as broker. In short, it must affirmatively appear that the purchaser was induced to apply to the owner through the means employed by the broker."16
10 See 5 103.
11 Handy v. Van Cortlandt Realtv Co., 156 App. Div. 110; 140 N. Y. Suppl. 1081 (1913); May Co. v. Holland Holding Co., 156 App. Div. 162; 140 N. Y. Suppl. 1061 (1913).
12Morgan v. Zanger, 153 N. W. (Mich.) 1079 (1915).
13 Coppaqe v. Howard, 127 Md. 512; 96 Atl. 642 (1916).
14McLaughlin v. Campbell (N. J. Ct. of E. & A.), 74 Atl. 530 (1909); citing Vreeland v. Vetterlein, 33 N. J. L. 247; Derrickson v. Quimby, 43 N. J. L. 373; Somers v. West-coat, 66 N. J. L. 551, 553; 49 Atl. 462; Sussdorff v. Schmidt, 55 N. Y. 320.
15 55 N. Y. 319.
A clause in a contract with a broker for commissions on the sale of land to any person who became interested through the broker's efforts, does not apply to a person who had been interested theretofore.17
Where a written contract employing a broker to procure purchasers for lands provided that he should be entitled to commissions on sales made to purchasers whom he brought to his principal's office, or where he was the procuring cause of the sale, and not otherwise, he is not entitled to commissions where he merely talked upon the street to a person who subsequently became a purchaser and gave him literature describing the lands, but with whom he never had any subsequent communication.18
Where a broker was employed to sell certain real estate to a municipality, and procured its assent to purchase on the terms prescribed, but subsequently, in order to overcome a supposed defect in the title, the property was taken in condemnation proceedings for a sum in excess of the amount the broker was authorized to sell for, he is entitled to recover his agreed commission from his employer to whom the award was paid.19
Add to footnote 43:
Handy v. Van Cortlandt Realty Co., 156 App. Div. 110: 140 N. V. Suppl. 1081 (1913); May Co. v. Holland Holding Co., 156 App. Div. 162; 140 N. Y. Suppl. 1061 (1913).