A person acting in a representative capacity, such as trustee, executor or guardian, is personally liable for the broker's commission.21 As stated in Hickman v. Leg-gett, 100 Pac. 1072 (Cal. 1909), "It is well settled that an executor or administrator cannot create any liability against the estate in his charge by his employment of attorneys, brokers or others to assist him in the performance of his duties. The attorney, broker, or other person employed has no action or claim against the estate. Whatever claim he has, whether it be absolute or conditional, is against the executor or administrator in his individual capacity, who, in turn may, if the expenditure was made in good faith and was proper, be credited therewith in the settlement of his accounts with the estate."
One of two trustees who employs a broker to find a purchaser for the trust real estate, is liable in his individual capacity upon the contract of employment, and the other trustee need not be made a party defendant.22 Where an executor employs the broker, the executor is individually liable for his commission.23 Where it is sought to hold persons liable as executors, there should be proof that they had power of sale, and in the absence of proof that they could act otherwise than jointly, an employment of a broker by one of several executors does not bind the others.24 A guardian is personally liable for broker's commissions.25
19 Simes v. Rockwell, 156 Mass. 372 (1892).
20 Hopkins v. Molllnieux, 4 Wend. 465 (N. Y. 1830).
21 McGovern v. Bennett. 146 Mich. 562 (1906). (citing Packard v. Kingman, 109 Mich. 497; Lathrop v. Duffleld, 134 Mich. 485; Jones v. Dawson, 19 Ala. 672; Johnson v. Leman, 131 111. 609; 7 L. R. A. 656; Truesdale v. Ins. Co., 63 Minn. 49; Mitchell v. Whltlock, 121 N. C. 166; Worrall v. Harford. 8 Ves. 4; Strickland v. Symons. L. R. 26 Chan. Div. 245; 3 Pomeroy on Eq. Jure., Sec. 1085).
22 Diamond v. Wheeler, 80 App. Div. 58 (N. Y. 1903).
In the usual course of business, it is the seller and not the purchaser who pays the commission,26 and to charge the purchaser with liability requires satisfactory proof of a special contract to that effect,27 or it may arise from the fact that the purchaser employed the broker to find the property, as distinguished from the cases in which the broker is engaged by the vendor to sell the property.
Special contracts by which the purchaser undertakes the payment of commission are not unusual. Where in such a case the vendee by the contract of sale agreed with the vendor to pay the broker's commissions, it is said that the assumption to pay was based upon the vendor's compliance with the terms of the contract and his transfer of the title to the premises, and if the contract falls short of being performed, as where the court decided that the vendor's title was defective, the obligation imposed by the assumption falls with it in so far as the vendee is concerned.28
This determines the question, however, merely between vendor and vendee. The broker would still have his remedy against the vendor, unless he had unconditionally released the vendor and agreed to look to the vendee alone for his commissions, which would raise the question whether a novation had been created.
23 Pollatschek v. Goodwin, 17 Misc. 591 (N. Y. 1896). See also Wilson v. Mason, 158 111. 312 (1895).
24 Guthmann v. Meyer, 31 Misc. 810 (N. Y. 1900). And as to the power to purchase and invest, see Wilson v. Mason, 158 111. 312, 313 (1895). As to liability of executor, as such or individually, on employment of broker to procure a mortgage loan on the estate property, see McMahon v. Smith, 136 App. Div. 839 (N. Y. 1910).
25 Myers v. Cohen, 4 Misc. 185 (N. Y. 1893), (citing Douglass v. Leonard, 44 St. Rep. 293; Johnson v. Leman, 19 Am. St. 67).
26 Downing v. Buck, 135 Mich. 638 (1904).
27 Freeman v. Polstein, 49 Misc. 644 (N. Y. 1906).
28 Eckel v. Spltzer, 58 Misc. 467 (N. Y. 1908). See also Sec. 205 supra.