Where the broker succeeds in procuring a person ready, willing, and able to purchase on the terms of the vendor, and the vendor then imposes new conditions to which the purchaser will not accede, and the whole matter is then abandoned, the broker has nevertheless earned his commission.1
"In the absence of a special agreement, the services rendered by a broker to an owner of real estate generally fall into one of two categories: (1) Where the owner has given the broker the full and complete terms upon which he is willing to sell his property, and not merely the asking price thereof; (2) where the owner has his property for sale, and may or may not have set an asking price thereon, but does not fix the terms of the transaction, leaving them to be determined thereafter. In the first case the broker's duty is fulfilled and his commissions are earned when he produces a customer ready, willing and able to comply with all the terms fixed by the owner; should the latter then desire to add to the terms already imposed, the additional conditions must be germane to the original ones, if they are to furnish a sufficient reason for the refusal to pay the broker in case of the customer's refusal to agree to any modification of the original terms. In the second case, the broker's commissions are not earned until the customer produced by him reaches an agreement with the owner upon the price and terms upon which a sale can be made. This of course does not mean that a contract in writing must be signed by the parties, but that their minds must meet not only upon the price but upon the essential terms of an agreement to purchase." 2
Where the only terms given the broker were the price and the size of the property 20 x 100, "and the broker produced a proposed buyer who refused to contract because the vendor presented a contract describing the property as 20 x 100 "more or less," the addition of the words "more or less" were held not such a modification of or departure from the terms given to the broker, as to justify a recovery by him upon his purchaser's refusal to take.3 Add to footnote 6 (p. 142):
1Hutchinson v. Plaut. 218 Mass. 148; 105 N. E. 1017 (1914). See also $ 150. 2Arnold v. Schmeidler, 144 App. Div. 420, 427; 129 N. Y. Suppl. 408 (1911).
See also Sec. 150.
It has been said that the broker must procure a purchaser on all the terms of the principal even as to the date of closing title. Where no terms are laid down, the broker is said to take the hazard. As ordinarily the time of closing title is not stated when the broker is engaged, it would seem that a reasonable rule would be that the broker is not entitled to commissions where the vendor had fixed the time for closing title as one of the terms of sale, and the purchaser refused to agree thereto, or where the sale is not consummated because the vendor and purchaser were unable to agree upon a time fixed for closing of title, and no meeting of the minds resulted because of that circumstance. It would seem exceedingly harsh, if the vendor had at no time mentioned anything about the time for closing title, and the broker then brought a customer ready, willing, and able to purchase at the price and upon the terms fixed by the vendor, to then permit the vendor to defeat a suit for commissions, merely because no time for closing title had been fixed in the offer presented.
Where the owner had in writing authorized a broker to secure a customer for $25,000, "$10,000 of which must be paid in cash" and $15,000 by assuming a mortgage, and that "this contract expires and becomes null and void at midnight October 26, 1912," it undoubtedly would be true that if the broker produces a purchaser and notifies the owner within the time of the contract, it would not be essential that the purchaser pay the cash payment before the expiration of the term of the contract unless the contract specifically so provided. And where a broker produced a customer who was ready to take the property at the price and subject to the mortgage instead of assuming the mortgage, the court seemed to think that if the customer had paid the cash payment during the life of the contract, the court would have been willing to consider whether or not the owner, by his subsequent conduct, waived the provision by taking the property subject to the mortgage instead of assuming the mortgage, as the contract originally provided.4
Where in an action by a real estate broker to recover commissions, it appears that he was only authorized by the defendant, an attorney at law, acting as agent for the owners, to find a purchaser for the whole of a certain plot, and that he did not procure such purchaser, but did procure one for a portion of the plot, a judgment for the plaintiff should be reversed and the complaint dismissed.5
3Levy v. Sonneborn. 78 Misc. 50; 138 N. Y. Suppl. 285 (1912). 4 Wittwer v. Hurwitz, 216 N. Y. 259; 110 N. E. 433 (1915).
At page 144, at end of Sec. 188, add:
An agent to sell real estate cannot bind his principal "by a contract requiring him to carry out or perform its terms elsewhere than at his own home or place of business, even though it may be in a distant state. And although the contract is clearly within the agent's authority as to price and time of payment, yet if the agent assumes authority to insist on provisions not contemplated by the agreement of agency - as, for example, that the seller shall send his-deed to a certain bank for delivery or that the purchase money shall be paid at some named bank, or office, in the vicinity of the land, or the place where the contract is made, or elsewhere than at the seller's place of residence or business, or that payment be conditioned upon the seller's delivery of an abstract of title which shall be found sufficient by some third person - such added provision vitiates the entire contract and, unless ratified or approved, the agent cannot recover commissions upon any sale so made or attempted." 6