Where a contract for the sale of real estate provided for the payment of a broker's commission to the broker when the title closed and not otherwise unless the failure to close title was caused by fault of the vendor, and the seller returns the deposit because the vendee's assignee is irresponsible and unwilling to complete, the broker is not entitled to commission.14
Add to footnote 31 (p. 244):
Dean v. Williams. 56 Wash. 614; 106 Pac. 130 (1910).
See also Meckes v. Mullen. 75 Misc. 303; 132 N. Y. Suppl. 942 (1912).
Where a written contract employing a real estate broker to find a purchaser for lands expressly provided that he should receive as commissions a certain percentage of the purchase price "payable pro rata from each instalment of the purchase price as and when the same is received" by the seller, the final instalment of the commission being made payable when the sale was finally completed, and also expressly provided that if the purchaser should terminate the contract the rights of the broker "shall be thereby terminated." he cannot recover commissions except upon actual payments made by the purchaser to the seller. Any prior oral agreement to the effect that the plaintiff should be entitled to commissions if he found a purchaser, is merged in the subsequent written agreement, and the theory that the restrictions placed upon the rights to commissions in the written agreement were without consideration is untenable.15
14 Ivins Co. v. Martin Holding Co., 84 Misc. 437; 146 N. Y. Suppl. 126 (1914).
A provision in an agreement with a broker for the sale of lots on the instalment plan which read as follows: "Where lots are sold on the instalment plan out of each instalment the said Van Varick shall receive sixty (60) per cent, until the total amount of his commissions is paid," was construed to mean that the commissions should be paid only out of instalments actually received by the principal.16
Where a broker is working for a land company on instalment sales under an arrangement by which the land company is to give the broker one week's notice before it may cancel any contracts because of default in the payments of the instalments of the purchase price, the broker is entitled to at least nominal damages against the land company for cancellation of any contracts without notice to him, and if the broker can show the financial ability of the purchasers to continue payment of the instalments, he may possibly be entitled to substantial damages for the cancellation without notice to him, inasmuch as the notice to the broker was intended to give him an opportunity to persuade the purchasers to continue their payments.17
15 Colvin v. Post Mortgage & Land Co., 173 App. Div. 85, 86; 159 N. Y. Suppl. 361 (1916).
16Van Varick v. Suburban Investment Co., 76 Misc. 593; 135 N. Y. Suppl. 299 (1912).
17Benequit v. N. Y. & N. J. Real Estate Imp. Co., 148 App. Div. 628; 133 N. Y. Suppl. 226 (1912).