Sec. 229. Requirements Of An Earned Commission.8

Excluding now any present consideration of the conflict of opinion referred to in the preceding section, and confining the discussion to what has been said to be the prevailing rule, it may be stated that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale on the price and terms under which it is to be made, and until that is done his right to commissions does not accrue.9 But, in order to entitle the broker to commission, under this rule, it is not necessary that a contract of sale should actually have been executed, or that some note or memorandum of the sale should be made in writing. He is entitled to his commission upon the production of a purchaser ready, willing and able to purchase the property upon the terms fixed by the seller.10 And without a special agreement or understanding11 that the commissions are to be paid out of the purchase money received by the seller, the broker is, under this, the prevailing rule, entitled to his commissions when he produces the purchaser,12 ready, willing and able to purchase upon the principal's terms.

5 Brady v. Foster, 72 App. Div. 416 (N. Y. 1902). 6 Pinkerton v. Hudson, 113 S. W. 35 (Ark. 1908).

7 Brady v. Foster, supra. See Ch. XVI supra, " Failure of Principal to Complete," and Ch. XVII supra, " Failure of Customer to Complete."

8 See Sec. 228 supra, as to scope of this section.

9 Rae Co. v. Kane, 132 App. Div. 935 (N. Y. 1909).

10 Mooney v. Elder, 56 N. Y. 238 (1874) ; Flower v. Davidson, 44 Minn. 46 (1890) ; Hinds v. Henry, 36 N. J. L. 332 (1873) ; Monroe v. Snow, 131 111. 136 (1891), (citing McGavock v. Woodlief, 28 How. 221; Doty v. Miller, 43 Barb. (N. Y.) 529; Bailey v. Chapman, 41 Mo. 537).

"It is not the duty or obligation of an ordinary broker to see to it that the seller has a good title, or that he enters into an enforceable contract; his duty is done when he has brought a purchaser who is ready, willing and able to purchase upon the conditions named by the seller, and when this is done his commissions are earned." 13

Under this rule, which, as stated, is the prevailing rule, when the broker produces a purchaser, able and willing to purchase on the owner's terms, but the sale falls through on account of serious encroachments which the owner failed to disclose either to the broker or to the purchaser until the parties meet to sign the contract, the broker is entitled to recover his commissions.14

Sec. 230. Unsupported Agreements To Wait For Commission

While the broker may by special agreement, so contract as to make his compensation depend upon the actual signing of a contract, or upon the actual passing of title, or upon other contingencies,15 yet a broker who has fully earned his commission is generally not bound by any subsequent agreement that no commission is to be paid unless the deed passes, for such an agreement is without consideration and cannot affect the obligation of the vendor to the broker.16 And the agreement is not more binding because it recites a consideration of "one dollar and other good and valuable considerations," when in fact none passed.17

11 See Sec. 230-233 infra.

12 Moonev v. Elder, 56 N. Y. 238, 242 (1874).

13 King v. Knowles, 122 App. Div. 414 (N. Y. 1907).

14 Scott v. Neuberger. 58 Misc. 22 (N. Y. 1908).

15 Hinds v. Henry, 36 N. J. L. 332 (1873).

16 Moskowitz v. Hornberger, 15 Misc. 645 (N. Y. 1896).

As has already been said,18 the broker's commissions are by the weight of authority earned and due when the minds of the parties are through him brought to an understanding, and an agreement to wait for commissions until the title is closed is unsupported by any consideration. The fact that the seller refuses to make the contract unless the broker agrees to wait for his commission until the title is closed, has been said not to furnish a sufficient consideration.19

But in another case,20 where the proposed vendor refused to execute the contract unless the broker consented to the incorporation therein of the following provision: "The vendor agrees that Ole E. Larson is the broker who has brought about this sale, and agrees to pay said broker his commission therefor, namely, 1 per cent, when balance of cash amount to be paid is made and deed actually delivered/' the court held that before the broker could recover he must show either that the contract was carried out as indicated, or that non-performance was the fault of the defendant.21

Where the broker for securing a tenant acquiesced in the remark of the owner that no commissions were to be paid unless his customer took a lease and paid over the money, he is not bound to forego his commission if the customer never pays the money or executes a lease. The broker's acquiescence is not a binding contract because there is no consideration for it.22 In this case,23 however, the court intimated that there was no pretense that the owner stated to the broker that he would not accept the customer, or execute the agreement, unless the broker would make the payment of his commissions conditional upon payment by the purchaser.

17 Rohkohl v. Sussman, 61 Misc. 249 (N. Y. 1909).

18 Sec. 228. 229 supra.

19 Hough v. Baldwin. 50 Misc. 546 (N. Y. 1906).

20 Larson v. Burroughs. 131 App. Div. 877 (N. Y. 1909).

21 Citing Seymour v. St. Luke's Hospital. 28 App. Div. 119 (N. Y. 1898).

22 Benedict v. Pincus, 134 App. Div. 555 (N. Y. 1909).