Sec. 233. Construction Of Agreements To Wait Until Title Is Closed

Even where commissions are to be paid "at the closing of title," it has been held to mean, not when the title is actually closed, but the day when the title was agreed to be closed.35

Where a so-called "binder" for the sale of property provided for a time when the formal contract was to be executed, and also contained the following clause, "commissions to be paid to * * * on closing of title," the court held that the provision merely fixed the time when the brokerage should be payable if the contract was performed, and that the actual closing of the title was not a condition precedent to recovery of the brokerage.36 The court further said: "The case of Fittichauer v. Van Wyck, 92 N. Y. Suppl. 241 (1905), does not apply, because there the broker's commissions were not to be paid until and unless title passed. Haase v. Schneider, 112 App. Div. (N. Y.) 336 (1906), Peace v. Ross, 123 App. Div. (N. Y.) 611 (1908) and Shapiro v. Nadler, 51 Misc.

32Burnett v. Potts, 236 111. 499 (1908). See also Sec. 215 supra.

33 See Sec. 117-119 supra.

34 Chambers v. Herring, 88 S. W. 371 (Tex. 1905).

35 Morgan v. Calvert. 120 App. Div. 327 (N. Y. 1908). And see Plukerton v. Hudson. |18 S. W. 35 (Ark. 1908).

36 Meltzer v. Straus, 61 Misc. 253 (N. Y. 1909), (citing Morgan v. Calvert, 126 App. Div. 327 (N. Y. 1908) ).

(N. Y.) 13 (1906) are inapplicable," to such a case, "for the reason that, in those cases, the parties had not agreed upon the terms of the contract, while, in the present case, there was sufficient evidence to warrant the jury in finding that the parties fully reached an agreement as to terms."

Where the agreement is that the broker shall have as commission all he secures above a fixed price, part to be paid on execution of contract and balance "at the closing of the title," the court thought that "the fair reading of the contract does not make the actual closing of the title a condition precedent to the right of the plaintiff (the broker) to his commission. * * * The mere fact that by reason of the defendant's defective title he is unable to complete his contract at that time does not operate to postpone the plaintiff's right to payment."37

In another case,38 it was held that where the broker agreed that no commission should be paid until title passed, assuming such an agreement to be good,39 one party cannot arbitrarily refuse to complete the sale and be relieved of liability for commission. The fair intendment of such an agreement is that the broker's commission fails only in case title is not passed on account of some circumstance beyond the party's control. And where the commission was to be paid out of the final payments made by the purchaser, the fact that the final payments were not made, because the purchaser objected to the validity of the title, and the vendor thereupon returned the payments on account, does not deprive the broker of his right to recover.40

Where the seller deposits a sum with the purchaser's attorney to be delivered to the broker upon the seller's order when title passes, and the purchaser does not complete his purchase, the seller has a right to the return of the money irrespective of whether the broker earned his commission as the deposit was subject to the seller's order. In such case if the broker has earned his commission and the seller refuses to give the order, the matter is one between the broker and the seller.41

37 Morgan v. Calvert, 126 App. Div. 327 (N. Y. 1908).

38 Greenwald v. Rosen, 61 Misc. 260 (N. Y. 1909). 39 See Sec. 230 supra, 234 infra.

40 Bankers Loan Co. v. Spindle, 108 Va. 426 (1908).