The rules which apply to recovery of commission on sales apply also to exchanges. It is customary, however, for both parties to an exchange to pay a commission based on the value or price of their respective properties. A statement in the contract that each party shall pay the broker is sufficient notice to each that he is receiving commission from the other. He has no right to secretly make a double commission. It often happens that two or more brokers are interested in an exchange representing opposite sides, and they sometimes pool their commissions and take an equal division of them.
The broker is usually entitled to commission for procuring a mortgage loan only in the event of the loan being actually made, or in case he had procured an acceptance of it and it failed to close through defect in the title to the property or fault of the borrower. This is the New York rule.18 The reason for this rule is that there is rarely an enforceable agreement on the part of a lender to make a loan. The lender may agree to accept it, but this does not constitute a contract. In other jurisdictions the rule seems to be that the broker has earned his commission when he produces a lender, willing, ready and able to make the loan on the terms offered.19
The New York rule with regard to commissions for making leases is similar to that of procuring loans. The broker is not entitled to compensation unless a lease or a binding agreement for a lease is obtained. The broker would, however, be entitled to his commission in case the owner tried to impose new and unreasonable terms upon a prospective tenant and the lease was not made for that reason.20 In a Maine case it was held that the broker's duty was no more than to bring the owner one willing to become a tenant on the owner's terms.21 When a lease has been made the broker is entitled to his full commission and this is so regardless of the tenant's subsequent default, unless of course the broker has made a binding agreement to the contrary.
18Duckworth vs. Rogers, 109 App. Div. 168 (N. Y.); Holliday vs. Roxbury Dist. Co., 130 App. Div. 654 (N. Y.).
19 Peet vs. Sherwood, 43 Minn. 448.
20Crombie vs. Waldo, 137 N. Y. 129; Tenenbaum vs. Boehm, 126 App. Div. 731 (N. Y.).