Where the purchaser's assent to buy is qualified by a statement that he accepts the vendor's offer and has forwarded contract to be signed, it is really an acceptance according to the contents of such contract, but unless the contract is satisfactory, or complies with the vendor's proposition, no completed transaction can be said to have resulted.11
Where the broker has brought a purchaser ready and willing to purchase on the owner's terms, and an informal agreement is reached, but the vendor refuses later to make a formal contract, the fact that the broker subsequently endeavors to have the parties agree on new terms does not amount to a waiver of his right to commissions.12
And in a Nebraska case, it was said that "when the price of property and terms of payment are fixed by the seller, and the broker's engagement is to procure a purchaser at that price and upon those terms, if, upon the procurement of the broker, a purchaser is produced with whom the seller himself negotiates and effects a sale, although the terms may be changed and even the sale itself finally abandoned, he is entitled to his commission."13
8 Haase v. Schneider. 112 App. Div. 336 (N. Y. 1906). See Sec. 364 infra as to meaning of "closing of title."
9 Smith v. Allen. 101 Iowa 608 (1897).
10 See Sec. 157 supra as to scope of this chapter.
¹¹Runyon v. Wilkinson, 57 N. J. L. 423 (1894). See also Sec. 163 infra.
"Levy v. Buff, 4 Misc. 180 (N. Y. 1893).
So where the broker was authorized to sell, nothing being said about the character of the deed to be given, and the owner refuses to contract only because the purchaser produced by the broker insists on a warranty deed, which the owner declines to give on account of a supposed defect in part of the title, the broker cannot recover commissions, since it cannot be said that the minds of the parties met.14 And it was held in Guth-mann v. Meyer, 31 Misc. 810 (N. Y. 1900) that a broker is not entitled to commission where his principal and the proposed purchaser failed to consummate a sale because of a dispute over taxes.
But where the broker produces a purchaser ready, able and willing to purchase, and the only objection of the owner is that the purchaser's acceptance did not provide for the same terms of interest required by the owner, and the broker offered to have the acceptance complied with and to pay the difference then and there, the broker was held entitled to his commissions, the court deeming the owner's objection too trivial.15 And where an owner listed his property with two brokers to one of whom he had given a fixed price ($12,400), and a buyer not knowing this, proposed to buy the property from the other broker at a higher price ($13,000), but later discovering the facts, negotiated with the first broker at $12,400, and the owner, though duly notified thereof, refused to accept, preferring the larger offer, it was held that the broker with the $12,400 offer had earned his commission.16
And where a broker procures a customer to whom his employer agrees to sell, he is entitled to recover commissions notwithstanding that thereafter the employer refuses to enter into a formal contract of sale because a building upon the land intended to be conveyed encroaches upon adjoining land.17
¹³ Potvin v. Curran. 13 Nebr. 302 (1882).
14 Hess v. Bloch, 56 Misc. 480 (N. Y. 1907). See also Sec. 133 supra.
15 Rlker v. Post. 125 App. Div. 607 (N.Y. 1908).
16 Lovett v. Clench, 115 App. Div. C35 (N. Y. 1906).