"When a broker, as a part of his employment, assumes to execute for his principal an executory contract of sale or exchange, he does not become entitled to his commission unless the other contracting party is able to perform the contract on his part."7
"A broker is entitled to his commissions when he has produced a purchaser ready and willing to enter into a contract on the employer's terms; and where the broker has produced a purchaser ready and willing to contract on the terms stipulated, a subsequent agreement, without consideration, not to claim his commissions until the happening of some other contingency, is not binding on him, and a recital in such agreement that it is in consideration of the execution of the contract of sale does not establish a valid consideration, as the procuring of the contract of sale was the consideration for the broker's commissions."8
Where a broker signs a written agreement to waive his commissions if the contract of sale is not performed, and the broker then sues for his commissions, although the contract of sale was not performed, he claiming that the written agreement to waive commissions was obtained by fraud and false representations and that therefore his original oral agreement of employment was revived, the City Court of New York, being an inferior local court and without general equity jurisdiction, cannot grant any relief by way of setting aside or rescinding the written brokerage contract because of fraud or false representations.9
A suggestion worthy of quotation is made in one case wherein it is said that, "there is quite a distinction between contracts of brokers containing the condition that commissions are only to be paid, viz., 'when deed is actually delivered' or 'title closed,' or 'when title is passed,' or 'on closing of title,' or 'commissions not to be due or payable until title is passed.' There can be found expression of opinions in the books covering all such conditions wherein a broker can or cannot recover unless an enforcible contract is fully carried out, and also holding to the effect that the payment of the commissions is suspended until the certain event has happened. But each case must be decided upon its own facts." 10
7 Inge v. McCreery, 60 App. Div. 557; 69 N. Y. Supj.l. 1052 (1901).
8 Taubenblatt v. Galewski. 108 N. Y. Suppl. 588 (Suo Ct App. Term, 1908) citing McComb v. Von Ellert. 7 Misc. 59; 27 N. V. Suppl. 372; Moskowitz v. Hornberger, 15 Misc. 645; 38 N. Y. Suppl. 114; Hough v. Baldwin, 50 Misc 546; 99 N Y. Suppl. 545.
9 Wiederman v. Verschleiser, 93 Misc. 453; 158 N. \ Suppl. 308 (1916).
Add to footnote 16:
Bernstein v. Fulson Realty Co., 152 N. Y. Suppl. 995 (1915).
Where the only evidence of an employment or of an agreement to pay commissions is furnished by the clause in the contract that the seller agrees that a certain person is the broker who brought about the sale, and agrees to pay his commissions, and that he "shall be entitled to his commission upon passing of title as agreed," the broker cannot recover unless he proves that title passed.11
This decision apparently has its basis in the fact that the broker having shown no prior employment, the contract clause must be assumed to be the evidence of his employment, and that the agreement to wait for commissions is valid because being part of the contract of employment.
In Williams v. Ashner,12 the brokers had begun negotiations to bring about a lease, but before they had really produced anyone ready, willing, and able to enter into a lease, the landlord insisted that the brokers sign an agreement that no commissions would be paid unless a lease between certain named persons was actually executed, and the court held the agreement valid, and denied commissions on failure of the broker to show that such a lease had actually been signed.
In Colvin v. Post Mortgage & Land Co.,13 the opinion states that while the broker's negotiations for a sale were pending, "it was orally agreed by defendant (the principal) that if plaintiff (the broker) would find a buyer and defendant should sell the land for $150,000 plaintiff should be paid a commission of ten per cent.
"On April 18, 1913, the agreement between plaintiff and defendant was reduced to writing and signed by both. This agreement recited plaintiffs negotiation of a sale of the property for $150,000, and provided" for the payment of commissions on instalments of the purchase price as received by defendant. The court said:
10 Meckes v. Mullen. 75 Misc. 303, 304; 132 N. Y. Suppl. 942 (1912). 11 Reis Co. v. Zimmerli, 170 App. Div. 502; 156 N. Y. Suppl. 327 (1915). 12152 App. Div. 447; 137 N. Y. Suppl. 275 (1912). 13173 App. Div. 85; 159 N. Y. Suppl. 361 (1916).
"The plaintiff has evolved an ingenious theory by which he seeks to avoid the application of the rule that where parties have deliberately entered upon a written agreement, all prior negotiations and agreement upon the subject-matter thereof will be deemed to be merged therein. His argument is that by reason of his employment to find a purchaser and his success in so doing an obligation arose on the part of the defendant to pay his commissions, and that the subsequent written agreement specifying how and when the commissions should be paid was without consideration and void. If this contention should be permitted to prevail, there would be an end of the salutary rule now so strongly entrenched in our law. That rule is based upon the soundest principles of public policy and is not to be overturned at this late day. There is a conclusive presumption in such a case that the written document expresses the consummated agreement between the parties, and neither will be heard to assert that it differs from a prior oral agreement covering the same subject."