Sec. 116. Procuring Cause (P. 117)

"The broker is entitled to his commission if he is the primary, proximate, and procuring cause of the sale."1

The broker must show he was the procuring cause of the sale.2

Add to footnote 13 (p. 117):

Hayden v. Ashley, 86 Wash. 653; 150 Pac. 1147 (1915).

Add to footnote 14 (p. 118):

Koliha v. Jonas, 98 Neb. 790; 154 N. W. 556 (1915). And so if the husband of the owner declines to join in a contract of sale. Joice v. Norman, 192 111. App. 285 (1915). See also Sec. 167, 191.

Add to footnote 15 (p. 118):

Cf. Laubscher v. Mixell, 153 N. W. (Iowa) 335 (1915), as to homestead lands.

Sec. 117. What Is Required To Constitute A Broker A "Procuring Cause" (P. 118)

To earn his commission the broker need only produce a ready, willing, and able purchaser.3

This rule has been codified in some states, as for example in Georgia, where it is provided that "the broker's commissions are earned when, during the agency, he finds a purchaser ready, able and willing to buy, and who actually offers to buy on the terms stipulated by the owner."4

Add to footnote 16 (p. 119):

Davidson v. Stocky, 202 N. Y. 423; 95 N. E. 753 (1911); Tanenbaum v. Boehm, 202 N. Y. 293; 95 N. E. 708 (1911); Hammack v. Friend, 180 Mo. App. 472; 166 S. W. 647 (1914); Cavanaugh v. Conway, 36 R. I. 571; 90 Atl. 1080 (1914); Beougher v. Clark. 81 Kan. 250; 106 Pac. 39 (1910); Betz v. Land Co.. 46 Kan. 45; 26 Pac. 456; Stewart v. Fowler, 53 Kan. 537; 36 Pac. 1002; Marlatt v. Elliott, 69 Kan. 477; 77 Pac. 104; Gelatt v. Ridge, 117 Mo. 553; 23 S. W. 882; 38 Am. St. Rep. 683.

In Goodmanson v. Rosenstein, 144 111. App. 243 (1908), it was said that when the broker produced a purchaser ready, willing, and able to buy he thereby earned his commission.

1 Beougher v. Clark, 81 Kan. 250; 106 Pac. 39 (1910).

2 Owcharoffsky v. Trustees of W. C. M. Church. 86 Misc. 36; 148 N. Y. Suppl. 138 (1914); May Co. v. Holland Holding Co., 156 App. Div. 162; 140 N. Y. Suppl. 1061 (1913); Handy v. Van Cortlandt Realty Co., 156 App. Div. 110; 140 N. Y. Suppl. 1081 (1913).

3Watkins v. Thomas, 141 Mo. App. 263; 124 S. W. 1063 (1909).

4Sec.3587, Ga. Code (Sec.3015, Code, 1895).

Sec. 119. General Rule As To "Procuring Cause" (P. 124)

The broker is not required to procure an enforceable contract of sale with the purchaser; it is enough if he produces a purchaser ready, willing, and able to buy the property on the principal's terms.5

Sec. 121. Effect Of Promises To Pay Commission (P. 126)

Agreeing in the contract of sale who is the broker is nothing more than an evidentiary fact by way of admission that the broker named brought about the sale.6 Such a promise is executory in character, and if the services have already been rendered when such promise is made, it rests upon no consideration and is unenforcible.7

In Petry v. Haves,8 Mr. Justice Marean of the New York Supreme Court says, "The clause inserted in the contract for exchange touching the payment of commissions to brokers is not a part of the contract. It in no way relates to the obligations of the contracting parties toward each other. Neither is it a promise to the brokers to pay commissions which can be made the foundation of an action by the brokers. It is at the best only a declaration of fact to which the parties appended their signatures and which may be used as evidence against them. Whenever and wherever it may be offered in evidence against them or either of them it may be met by evidence that they or either of them against whom it is offered signed the instrument in ignorance, that such clause had been inserted therein. Such proof being made, the clause is deprived of all probative force. There is therefore no reason for this action to eliminate the clause in question from the contract and none for staying the brokers' suit for commissions until that can be done." In this case the clause was, "$150 commission to be paid to Thos. J. Walsh and James K. Knudson, Jr. on closing of this title for acting as brokers in this exchange."

At page 127. at the etui of Sec. 121t add: And so, inserting a clause in a lease to the effect that A was the broker in the transaction, cannot affect the rights of another broker if he had any rights, neither can the proposed tenant, by stating that his attention had been called to the property by the broker not mentioned in the lease, compel the landlord to accept such broker as the landlord's broker.9 In other words, if a broker is really the procuring cause, he cannot be deprived of his rights simply because the owner of the property insists on saying in the lease, or in the contract of sale, that someone else was the broker, and, on the other hand, the owner of the property cannot be forced to pay commission to a broker merely because the proposed purchaser or the proposed tenant claims that such broker called his attention to the property, unless such broker has been employed by the owner of the land, or his negotiations have been ratified to such an extent as to make the ratification equivalent to employment.10

5 Schweid v. Storandt, 157 App. Div. 855; 143 N. Y. Suppl. 161 (1913).

6 Hevia v. Wheelock, 155 App. Div. 387; 140 N. Y. Suppl. 351 (1913).

7Id.

8 44 N Y Law J. 1536 (Jan. 13. 1911).

9 Belden v. Kellwood Realty Co.. 74 Misc. 61; 131 N. Y. Suppl. 580 (1911).