It is said that in the case of an exchange, the right of the broker to commissions depends upon showing that the parties actually reached an agreement as to all the details of the proposed exchange, or that he produced a party who was able, ready, and willing to exchange on terms which the employer had stated to the broker would be satisfactory.1
"To entitle a broker to compensation upon a proposed exchange of property, he must show that, after the terms of the exchange had been agreed upon, the client refused to carry them out. This does not mean that the client, having agreed upon some of the terms discussed, may not change his position regarding some element discussed during the conference, or introduce other terms essential to the making of a final contract at the risk of paying a broker's commission." 2
Add to footnote 6:
Brilliant v. Samelas. 221 Mass. 302; 108 N. E. 1047 (1915).
"A power to sell or to convey would not carry with it a power to exchange. Where powers are granted by a principal to an agent in a general language, it is the rule that such powers may be implied as are indispensable to the exercise of the grant of general powers. But this rule does not go to the extent of an implication of a power which may be, in a given case, convenient though not indispensable." 3
Where the broker has procured an enforcible contract of exchange to be made, it is immaterial that the contract was never performed or that one of the parties was not in a position to perform it.4 Where in an action by a real estate broker to recover commissions for procuring an exchange of lands it appears that the plaintiff procured a party with whom the defendant entered into a contract, it is error to dismiss the complaint on the merits upon the theory that the plaintiff had failed to establish that the party with whom the defendant contracted was the attorney in fact of the owner of the land he contracted to exchange as he had represented himself to be when he signed the contract. The defendant, having decided to enter into a contract with knowledge that the other party claimed to be only the attorney in fact of the owner, thereby relieved the plaintiff from responsibility in that respect.5
1Davis v. Gottschalk. 80 Misc. 530, 531; 141 X. Y. Suppl. 517 (1913). 2 Id., 80 Misc. 530, 533; 141 N. Y. Suppl. 517. See also Sec. 158, 167. 3 Forman v. Berry, 163 App. Div. 594; 148 N. Y. Suppl. 959 (1914).
By an agreement between a broker and the owner of real property that the broker shall have a commission of $350 for effecting an exchange of properties, but that, if the owner of the other property refuses to take title and pay the consideration, the total commission is to be $100 only, a refusal to take title pursuant to the terms of the contract for the exchange of the properties is intended and not a refusal because the owner making the agreement is unable to carry out the contract.6
In Backer v. Ratkowsky,7 it was said: "A person is not bound to enter into a contract which the other party to the contract is not then able to perform merely because the other party expects to be able or is willing to obligate himself to perform. It seems to me there must be presented to entitle a broker to commissions a customer who is capable of carrying out the contract at the time that it is proposed that one be executed."
Where the broker knows that one of the contracting parties is without title, and conceals that fact from his employer, he cannot recover commissions although a contract for the exchange of properties was actually entered into, where it was not carried out because the other party to the exchange contract with the broker's employer, had no title.8
4 Slocum v. Ostrandcr, 141 App. Div. 380; 126 N. Y Suppl. 219 (1910); affd., 205 N. Y. 617; citing Alt v. Doscher, 102 App. Div. 344; 92 N Y. Suppl 439; affd. 186 N. Y. 566; 79 N E. HOD; Kallcy v. Baker, 132 N. Y. 1; 29 N E 109; 28 Am. St. Rep. 542 (1892). See also Brilliant v. Samclas. 221 Mass. 302; 108 N E 1047 (191S).
5 Callister v. Wichern, 147 App. Div. 14; 131 N. Y. Suppl. 6 1 0911).
6 Freilich v. Tucker. 68 Misc. 318; 123 N. Y. Suppl. 786 (1910).
737 App. Div. 564; 122 N. Y. Suppl. 225 (1910).
8Wiley v. Kraslor Construction Co., 141 App. Div. 706; 126 N. Y. Suppl. 879 (1910).