Sec. 214. Measure Of Compensation (P. 223)

As to recovery by broker on failure of parties to carry out exchange contract, of the following items: (1) commission on exchange from both parties; (2) commission on loan procured for one of the parties; (3) amount broker obligated himself for in procuring examination of title, see Hevia v. Wheelock.1

Sec. 214a. Promise To Pay Increased Commissions (P. 224)

Where a broker employed to find a purchaser for lands agreed to accept $1,000 for his services in procuring a certain purchaser at a time when all the negotiations between the parties had been completed, the sale consummated, and the officers of the purchaser, a corporation, had authorized the execution of a contract of sale and a check for the payment of the earnest money to the vendor was ready for delivery, so that all that was necessary to complete the contract was for the vendor to sign the agreement and receive the check, there was no consideration for a subsequent promise to pay the broker an increased price for his services, no additional services having been rendered.2

Sec. 216. Agreements For All In Excess Of Fixed Price (P. 225)

In third paragraph, after sentence, "The same ruling has been applied in other jurisdictions," add footnote Sa:

Louva v. Worden, 30 N. D. 401; 152 N. W. 689 (1915).

Sec. 217. Rule As To All In Excess Of Fixed Price (P. 226)

Where a broker is to receive one-half of all in excess of a fixed amount he obtains as the purchase price, it was held that he cannot, in the absence of allegations showing he has no adequate remedy at law, sue in equity for an accounting against his principal even though the broker does not know how much was received by his principal in excess of the fixed amount. His remedy is said to be an action at law for the agreed value of the services rendered, and if he does not know the exact amount to sue for, he may commence bis action, and then examine the defendant to enable the broker to frame his complaint or to reveal facts showing whether the broker has an adequate remedy at law or requires the aid of a court of equity.3

1162 App. Div. 759; 148 N. Y. Suppl. 165 (1914).

2Mayer v. Penfield, 150 App. Div. 66; 134 N. Y. Suppl. 762 (1912).

Yet the same courts have repeatedly denied the right of a plaintiff to examine a defendant in order to obtain facts to frame a complaint, and have held that such an examination will only be granted under most unusual circumstances.

A grantee of real property is liable on a check given in part payment and transferred by the grantor to his agent, although the latter when negotiating the sale told the vendee that the owner would not sell for less than a certain price, when as a matter of fact the vendor had told the agent that he should receive for bis services any sum he succeeded in obtaining above a stated sum, which was less than the consideration paid, and the check transferred to the agent represented the excess. As the agent was not acting for the grantee and owed no duty to him, the misstatement of fact does not prevent a recovery so long as there was no misrepresentation as to the value of the property.4

Sec. 224. Proof Of Custom (P. 233)

Where a broker sues for commissions, he may himself testify as an expert to the customary rate of commissions, if it appears that he has had such experience which would make him familiar with the customary rate.8

Add to footnote 49 (p. 234) before words, "A custom contravening" :

Higgins v. Moore, 34 N. Y. 417, 422 (1866).

Sec. 226. Compensation In The Absence Of Agreement Or Usage (P. 236)

In a real estate broker's action for commissions for furnishing a tenant for property, evidence of real estate agents as to the value of plaintiff's services was admissible, though the witnesses had no experience in the real estate business in the city where the services were rendered, there being no evidence that the value of such services was different in such city from that in other places, or that there was any custom or fixed rates there prevailing different from other places.6

3Stewart v. Auerbach, 148 App. Div. 222; 132 N. Y. Suppl. 1021(1911)•

4 Aronowitz v. Woollard, 166 App. Div. 365: 152 N. Y. Suppl. 11 (1915).

5 Van Doren v. Jelliffe, I Mis. 354; 48 N.Y. St. Rep. 784; 20 N. Y. Suppl. 636 (1892)

6 Floore v. Burgher, (Tex. Civ. App.) 128 S. W. 1152 (1910).