Sec. 209. Purchaser's Promise To Pay Commission

Where the property is given to an agent to sell, and he proposes it to a buyer, and the latter requests the broker to do nothing further but to permit the purchaser to deal directly with the owner, and promises to pay the broker a commission if he buys the property, the purchaser is liable for the commission if he buys the property. Such an agreement does not imply bad faith on the broker's part, if all the terms are fixed and the broker has no discretion.29

And when the broker, upon request of the owner, initiates the negotiation which eventuates in the sale, but subsequently remains silent upon the promise of the purchaser to pay his commission in full, thereby inducing the owner to rely upon the purchaser's certification that there was no broker's commission, and to fix the purchase price accordingly, it furnishes a consideration for the purchaser's promise to pay the commissions.30

Where the seller refuses to sell unless the broker waives any claim against him for commission, and the vendee then promises to pay the broker if he waives all claim against the seller, the vendee is liable for the promised amount, and this irrespective of whether the broker had a valid claim for commission against the vendor.31

And where the vendor released the vendee from his contract of purchase, a promise by the latter in such event to pay the broker's commissions which the vendor had incurred, is founded upon a sufficient consideration. And it seems this is so whether or not the contract from which the purchaser was released would have been enforceable.32 If a proposed purchaser promises to pay the commission in case he purchases, because the vendor would pay no commission, and the property is subsequently sold to a third party who in turn sells to the proposed purchaser, the question whether the commission was earned should be submitted to the jury.33

29 Slegel v. Rosenzwetg, 129 App. Div. 547 (N. Y. 1909). See also Ch. XIII, supra, as to good faith of broker.

30 Abraham v. Goldberg. 6 Misc. 43 (N. Y. 1893). 31 Cole v. Mendenhall, 117 App. Div. 786 (N. Y. 1907).

Sec. 210. Broker Employed By Purchaser

Where a real estate broker is employed to buy real estate, he earns his commission when he has in good faith brought to his employer a seller who makes a written contract with him for the sale of the property, and it is no answer to his claim for commission against such employer, that the seller could not make perfect title, and was therefore unable to carry out his contract of sale.34 Likewise, where the broker is employed by the purchaser, but with the understanding that he should receive his pay from the vendor, a refusal on the purchaser's part to comply with the contract to purchase, by reason of which the broker is deprived of his commissions, renders the intending purchaser liable for the damages thereby inflicted on the broker.35

"It would seem to be immaterial whether in the original negotiation or the sale the plaintiff (the broker) was the agent of the vendor or the purchaser. The complaint here is for the violation of the contract to purchase, from which violation damages directly result to plaintiff."36 Where a person agrees to pay a broker

32 Brown v. Jennett, 106 N. W. 747 (Iowa 1906); s. c, 5 L. R. A. (N. S.) 725. See also Sec. 205 supra.

33 Mutchntck v. Friedman, 135 App. Div. 356 (N. Y. 1909).

34 Knapp v. Wallace, 41 N. Y. 477 (1869).

35 Livermore v. Crane, 26 Wash. 529; 57 L. R. A. 401 (1901). (citing Bishop v. Averill. 17 Wash. 209; 49 Pac. 237; 50 Pac. 1024; Cavendar v, Waddinghara, 2 Mo. App. 551; Atkinson v. Pack, 114 N. C. 597; 19 S, E, 628),

36 Livermore v. Crane, supra, a commission if he succeeds in getting an owner to sell to the purchaser at a price named, and the broker succeeds in so doing, he is entitled to his commission from the proposed purchaser,37 notwithstanding the purchaser refuses to take the property because he is unable to get a reduction in the price.38

The fact that a purchaser who employed a broker to negotiate a sale for him, takes the contract and the deed in his wife's name, does not, of itself, deprive the broker of his compensation. Whether he is to be treated as the actual purchaser or, as agent for his wife, an undisclosed principal, the question of his liability is for the jury and not for the court.39

37 Brunson v. Blair. 97 S. W. 337 (Tex. 1906).

38 Michaells v. Hoffmann, 37 Misc. 830 (N. Y. 1902).

39 Bloch v. Lowe, 51 Misc. 8 (N. Y. 1906).