The broker having produced a purchaser willing and able to accept the terms of the. principal, has earned his commission, and the refusal of the vendor to complete the bargain cannot destroy the broker's right to the commission.2 Nor may the owner defeat the broker's earned commission by mutually rescinding the contract of purchase with the purchaser.3
It has been said that though the vendor expressed himself as satisfied with the proposition made by the customer produced by the broker, such expression of satisfaction could not fairly be said to be such an acceptance of the proposed customer as bound the vendor to make the contract of sale, or rendered him liable to pay the broker's commission for such transaction, if for any reason the subsequent negotiations fell through and no contract was made.4
Add to footnote 3:
Tanenbaum v. Boehm, 202 N. Y. 293; 95 N. E. 708 (1911); Tull v. Starmer, 188 Mo. App. 713; 176 S. W. 511 (1915). See Sec. 158, 177, 187, 191.
Add to footnote 9:
As to broker's right to recover from vendor commissions promised by purchaser, when vendor refuses to convey, see cases under Sec. 334.
Add to footnote 7 (p. 177):
See also Sec. 116, footnote 14.
"if from a defect in the title of the vendor a sale falls through, nevertheless the broker is entitled to his commission for the simple reason that he has performed his contract. The contract betwcen the parties must he fairly and justly construed."5
1 Handley v. Shaffer, 177 Ala. 636; 59 So. 286; Bailey v. Padgett, 70 So. (Ala.) 637 (1915).
2 Beougher v. Clark, 81 Kan. 250; 106 Pac. 39 (1910).
3Harrington Co. v. Rose Conser., 222 Mass. 372; 111 N. E. 37 (1916). See also Sec. 172.
4Backer v. Ratkowskv, 137 App. Div. 565; 122 N. Y. Suppl. 225 (1910).
Add to footnote 11:
O'Reilly v. Cryer, (Tex. Civ. .App.) 175 S. W. 773 (1915).
Add to footnote 12:
But where the seller's broker knew that the title was defective and the seller had agreed with the broker to cure the defect before contract, the broker would not lose his commission upon producing a purchaser, who refused to take the defective title which the seller had omitted to cure. Mi Cowan v. Eubank, (Tex. Civ. App.) 177 S. W. 512 (1915).
On page 17S, after "consummated the sale" add: Reeder v. Epps, 166 S. W. (Ark.) 747 (1914).
All the terms of a trade having been agreed upon, the vendor cannot escape payment of commissions by asserting, as an excuse for his failure to consummate the trade, that the terms of a mortgage which he was to take in part payment of the price, had not all been agreed upon.6
"When a party gives a reason for his conduct and decision touching anything involved in the controversy, he is estopped, after litigation is begun, from changing his ground, and putting his conduct on another and different consideration."7
5 Tyler v. Seiler, 76 Misc. 185; 136 N. Y. Suppl. 394 (1912).
6Sheridan v. McLaughlin, 172 App. Div. 314; 158 N. Y. Suppl. 406 (1916). See also Sec. 159.
7Snyder v. Supreme Ruler, etc., 122 Tenn. 248; 122 S. W. 981 (1909).