"It has been settled by repeated decisions of this court that where a broker is employed to find a purchaser for real estate, and procures one ready, able and willing to pay, he is entitled to his commissions although the sale is prevented by defects in the vendor's title. In the last case cited,1 Judge Earl stated the law as follows: 'Where the contract of sale is executed between the employer and the purchaser, the right of the broker to his commissions does not depend upon the performance of the contract by the purchaser. If from a defect in the title of the vendor, or from a refusal to consummate the contract on the part of the purchaser for any reason in no way attributable to the broker, the sale falls through, nevertheless the broker is entitled to his commissions, for the simple reason that he has performed his contract.'
"We perceive no distinction in principle between such a case and one where a broker agrees to procure a loan and completes on his. part, but the loan is never consummated because the intending borrower cannot furnish the agreed security. In both cases the broker has done all that he could. He has rendered the stipulated service and it is through no fault of his that the matter is never completed. In both cases the efforts of the broker are rendered futile by the fault or misfortune of the employer, and under such circumstances the employer ought not to be heard to say that the broker has not performed. It is a familiar principle that one cannot avail himself of the failure to observe a condition precedent who has himself occasioned its ncn-performance; and it has been applied by the English courts to several cases where it was held that the broker, under circumstances not essentially different from those at bar, was entitled to his commissions.2 This view accords with the decisions in this state upon the subject." 3
While it has been said that "the physical production of a lender is not necessary if, as a matter of fact, there is a lender able and willing to loan,"4 it has also been said that "procuring an agreement from a third person to make a loan is not the same thing as procuring a loan." 5
1Gilder v. Davis, 137 N. Y. 504.
2Green v. Lucas, 33 Law Times R. (N. S.) 584; Fisher v. Drewett, 39 Law Times R. 253.
3Smith v. Peyrot, 201 N. Y. 210, 214; 94 N. E. 662 (1911).
It has also been said that the burden is upon the broker of showing that he had procured a customer ready, able, and willing to make the loan on the terms upon which he was authorized to procure it, so that if the principal had not refused to proceed, he would have received the loan of money as desired unconditionally then and there, if. indeed, an actual tender and rejection of the loan is not essential."'
Where no time is fixed within which the broker is to procure a loan, a reasonable time is implied.7
Where a broker employed to procure a loan on or before a certain date does not establish that he procured the loan, or was prevented by his employer from so doing, before the expiration of the time limit, he is not entitled to recover his commission; that on the last day he had procured an agreement with a third person to make the loan is insufficient.8 It would appear that the money must be actually advanced by the lender within the stipulated time.9
Where brokers, employed to procure from a title company its acceptance of an assignment of a first mortgage as security for a loan, secure merely an acceptance subject to the requirements and regulations of the title company, they are not entitled to commissions.10
In Holman v. Patten,11 the broker sued the owner for commissions for procuring the loan, claiming that the loan was not made because of the fault of the owner. The loan agreement provided that the borrower, the owner, was to furnish a policy of title insurance from one of two named title insurance companies, showing that the owner's title was a marketable one. The title company gave as an objection to the title that there was an outstanding interest in land "King east of the original high water mark of the Harlem River." It did not refuse to issue a policy but was willing to do so with that exception, which was held to be frivolous. It was held that the borrower was not at fault, but that the broker failed to make out a case in that the person he produced refused to make the loan although the title was good. The broker made no attempt to establish that any part of the land lay east of the original line of the high water mark, although that was the only objection contained in the report of the title company which was considered of any consequence.12
4 Van Orden v. Simpson, 90 Misc. 322, 323; 153 N. Y. Suppl. 134 (1915). 5 Slawson & Hobbs v. Rafter. 76 Misc. 199; 134 N. Y. Suppl. 585 (1912). 6Von Bayer v. Ninigret Mills Co., 164 App. Div. 698, 703; 150 N. Y. Suppl. 291 (1914).
7 Sugarman v. Fraser, 71 Misc. 416; 128 N. Y. Suppl. 718 (1911). 8 Slawson & Hobbs v. Rafter, 76 Misc. 199; 134 N. Y. Suppl. 585 (1912).
9 Sugarman v. Kearns. 84 Misc. 450; 146 N. Y. Suppl. 192 (1914). 10170 App. Div. S77; 156 N. Y. Suppl. 613 (1915).