When the broker has procured a willing and able purchaser, who assents to all the terms which the vendor has prescribed to the broker, the broker cannot be deprived of his commission by the vendor's capricious or obstinate insistence upon additional and unreasonable provisions to be inserted in the contract of purchase. "In such a case, the broker has done all that the vendor employed him to do and all that he undertook to do. The sale is defeated not by reason of any lack of ability or willingness on the part of the intending purchaser, or any refusal on his part to comply with the terms prescribed by the vendor to the broker, and by him disclosed to the buyer, but on account of the unreasonable imposition of new terms by the vendor. The broker's claim to compensation cannot thus be nullified."8
5 McNamara v. Gregory, 211 N. Y. 21; 105 N. E. 78 (1914).
6 Warnekros v. Bowman. 128 Pac. (Ariz.) 49; 43 L. R. A. (N.S.) 91 (1912). In the note to this case in 43 L. R. A. (N. S.) 91, many authorities are cited. 6Note to Warnekros v. Bowman, in 43 L. R. A. (N. S.) 91 (1912).
Add to footnote 22 (p. 160) :
See Sec. 130.
Add to footnote 23 (p. 160):
See Sec. 96, 127a.
Where the sale falls through because of the refusal of the vendor to accept the proposed purchaser, the broker, in order to recover commissions, must still show that he produced a purchaser ready, willing, and able to purchase.9
"When an agent brings to a principal a purchaser for his property, and the principal enters into a contract of his own making with the purchaser so furnished, then the rule is that such principal has accepted the purchaser so found by the agent, and the agent's commission is then due, although it may afterward turn out that the customer was not financially able to buy." 10
"The ground on which this is settled is that by entering into a valid contract with the customer produced by the broker the principal accepts the customer as able, ready and willing to buy the land and pay for it."11
The general rule prevailing in regard to the broker's right to commissions where the purchaser procured by him is financially unable to perform his contract, is that the owner of real estate who employs a broker to negotiate the sale of his land cannot escape paying the broker's commission on the ground that the customer produced by the broker was not able to pay for the land, where he had accepted the purchaser as satisfactory and conveyed the premises to him. The broker undertakes to bring the minds of the seller and buyer together in an agreement to sell and purchase, wherein the price and terms should be satisfactory to both, and there can be no more conclusive evidence that he has done this, than the execution and delivery of the deed to the land by the seller to the purchaser.12
8Davidson v. Stocky, 202 N. Y. 423; 95 N. E. 753 (1911).
9 Mott v. Minor (Cal. App.), 106 Pac. 244 (1909).
10 Knisely v. Leathe, 178 S. W. (Mo.) 453 (1915) ; Coleman v. Meade, 13 Bush. (Ky.) 358; Donohue v. Flanagan, 9 N. Y. Suppl. 273; Roche v. Smith, 176 Mass. 597: 58 N. E. 153; 51 L. R. A. 510; 79 Am. St. Rep. 345; Francis v. Baker, 45 Minn. 83; 47 X. W. 452; Wray v. Carpenter, 16 Colo. 271; 27 Pac. 24S; 25 Am. St. Rep. 265; Lockwood v. Halsey, 41 Kan. 166; 21 Pac. 98; Springer v. Orr, 82 111. App. 558; Love v. Miller, 53 Ind. 294; 21 Am. Rep. 192; cf. Riggs v. Turnbull, 105 Md. 135.
11Roche v. Smith, 176 Mass. loc. cit. 597; 58 N. E. 153; 51 L. R. A. 510; 79 Am. St. Rep. 345.
"Following this doctrine, it has been held that the broker, under a general contract of employment for the sale of real estate, is entitled to his commission where he produces a purchaser satisfactory to his principal, and with whom the principal makes an enforcible contract of purchase and sale without being induced so to do by any representation of the broker as to the ability of the proposed purchaser to perform the contract, and without any bad faith on the part of the broker, although, without any fault of the principal, the vendor afterward fails to perform the contract, solely because of the lack of sufficient financial responsibility at the time of the making of the contract." 13
An early case in Kansas1* to the contrary effect, was disapproved when the case was again before the court.15
The doctrine above stated does not apply where the broker as a part of his employment assumes to execute for his principal an executory contract of sale. Under such circumstances, he is not entitled to his commission unless the other contracting party is able to perform the contract on his part.16
This is, obviously, on the theory that where the principal himself enters into and executes the contract, he has thereby made his choice of personally accepting the purchaser and has thus himself passed upon the financial responsibility and the acceptability of the purchaser, whereas when the broker has entered into and executed the contract on behalf of his principal, the broker assumes to take the responsibility of the financial ability and other ability of the purchaser to carry out the contract.
12Van Varick v. Suburban Inv. Co.. 76 Misc. 593; 135 N. Y. Suppl. 299 (1912); Travis v. Graham, 23 App. Div. 214; 48 N. Y. Suppl. 736.
13Van Varick v. Surburban Inv. Co., 76 Misc. 593; 135 N. Y. Suppl. 299 (1912); Alt v. Doscher, 102 App. Div. 344; 92 N. Y. Suppl. 439; affd.. on opinion of the lower court in 186 N. Y 566; 79 N. E. 1100; Brady v. Foster, 72 App. Div. 416; 75 N Y Suppl 994; Heinrich v. Korn, 4 Daly 74: Wray v. Carpenter, 16 Colo. 271; 27 Pac. 248; 25 Am. St. Rep. 265; Shainwald v. Cady, 92 Cal. 83;28 Pac l01; Parker v. Fstabrook, 68 N. H. 349; 44 Atl. 484; Hancock v. Dodge 85 Miss. 228; 37 So 711; Morgan v. Keller, 194 Mo. 663. 680; 92 S. W. 75; Crane v Eddy. 191 111. 645; 61 N E. 431; 85 Am. St. Rep. 284; Bankers Loan Investment Co. v. Spindle, 108 Va. 425: 62 S. E. 266; Green v. Hnllinsshead, 40 111. App. 195.
14Stewart v. Fowler. 37 Kan. 677; 15 Pac. 918.
15 .Id. 53 Kan. 537; 36 Pac. 1002.
16Van Varick v. Suburban Investment Co.. 76 Misc. 593; 135 N. Y. Suppl. 299 (1912); Inge v. McCreery, 60 App. Div. 557; 69 N. Y. Suppl. 1052.
Add to footnote 37 (p. 163):
Bailey v. Padgett, 70 So. (Ala.) 637 (1915).
It is intimated that testimony as to the purchaser's reputation for financial ability is competent, as also testimony as to the character and magnitude of the financial institutions with which the purchaser is connected.17 And so it is said that slight evidence of the financial ability of the proposed purchaser is sufficient, and that this would be especially true where the vendor has not based his failure to complete upon the purchaser's inability to pay.18
17Hutchinson v. Plant, 218 Mass. 148; 105 N. E. 1017 (1914). 18 See Bailey v. Padgett, 70 So. (Ala.) 637 (1915).