THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW BOOKSTORE BMOHROUCt American Law of Real Estate Agency Including The duties and liabilities of Principals and Agents. The earning of commissions by Real Estate Brokers, Pleading, Practice, and Judicial Constructions and Interpretations, and Forms for Listing, Brok- erage and other Contracts. By WILLIAM SLEE WALKER (OF THE CINCINNATI BAR) SECOND EDITION CINCINNATI, O. THE W. H. ANDERSON COMPANY LAW BOOK PUBLISHERS 1922 Copyright THE W. H. ANDERSON COMPANY 1910 Copyright THE W. H. ANDERSON COMPANY 1922 T ~a09), 115 S. W. 487. If the vendor's broker misrepresented the acreage, and the pur- chaser relied on the representations, the purchaser can recover compensation for any material shortage, not exceeding the price per acre paid. Farris v. Gilder (Tex. Civ. App. '09), 115 S. W. 645. Where defendant agreed to purchase certain property at an agreed price if plaintiff would procure its sale, knowing that plaintiff would receive a commission from the owner, and there- fore refused to purchase, plaintiff could recover the amount of such commissions. James v. Home of the Sons and Daughters of Israel 153 N. Y. Sup. 169. \ PRINCIPAL AND AGENT. 265 Where defendant employed a broker to procure a loan for him, agreeing to pay 5% commission, and the broker applied to plaintiff, consenting that the amount of plaintiff's expenses should be deducted from the commission to be paid to him. De- fendant, on refusing the loan which plaintiff was ready to make, was liable to plaintiff for such expenses. Title Guaranty & Trust Co. v. Carroll, 129 N. Y. Sup. 919, 145 App. Div. 926. Where defendants, acting as real estate brokers at the time they executed an option authorizing plaintiff's agent to purchase a large tract of land, acknowledged that they had no authority to sell a portion of the land contained in the contract, they were guilty of legal bad faith within Code, Art. 1934, providing that where the object of a contract is anything but the payment of money, the damages due shall be the amount of the creditor's loss of the profits of which he has been deprived, and in case the execution of the contract has proceeded from fraud or bad faith, the debtor shall be liable, not only for such damages as were or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of contract, so that plaintiffs, having been compelled to purchase such part of the land from the owner at a higher price than that specified in the option, were not limited to the recov- ery of the difference between the option price and what they were compelled to pay. Tulane Ed. F. Admin, v. Baccich & De Montluzin, 56 S. 371, 129 La. 469. Where an agent, with authority to do so, executes a contract to sell land in the name of his principal, and the principal agrees to complete the sale "as soon as my wife is able to sign," and then refuses to complete the transfer, the purchaser can recover the resulting damages therefrom. Whitehouse v. Gerdis, 145 N". W. 338, 95 Neb. 228. Real estate agent employed to exchange land for other prop- erty, who falsely represented that other property listed with him was worth $1,500, and thereby induced an exchange, was liable to principal in damages. Suderman v. Koch, 168 P. 906, 101 Kan. 708. Under agreement between defendant and third party providing for an exchange of deeds to realty, and an agreement by defendant to pay plaintiff's commissions on day set for delivery, the com- 266 AMERICAN LAW REAL ESTATE AGENCY. mission was earned where defendant sued third party for breach of contract negotiated by broker and recovered damages. Haber v. Goldberg, 105 A. 874, N. J. Ct. of Err. and App. . A purchaser is not entitled to damages against a broker for misrepresentation of a tract of land received in exchange, where purchaser relied upon her own investigation and not on the bro- ker's representations. Myers v. Linebarger, 222 S. W. 720, Ark. Sup. . Sec. 300. Measure of damages. A real estate agent who undertakes to sell the realty of his principal without legal authority to bind such principal, does not render him responsible for any defect in the title of the principal. In the absence of evidence of other damages the measure of the agent's liability to the purchaser in such case is the excess of the market value of the principal 's title, whether good or bad, over the contract price. Gestring v. Fisher, 46 Mo. App. 603. In an action against an agent for fraudulent representations as to the location of real estate sold by him to plaintiff, after a disaffirmance of the contract, the measure of damages is the actual loss sustained, and not the difference between the actual value of the property conveyed and the price. Roberts v. Hol- liday, 10 S. D. 576, 74 N. W. 1034; Duncan v. Holder (N. M. '10), 107 P. 685. A contract authorized the plaintiffs to sell a tract of land of seven thousand acres, and provided that the tract should be sub- divided, and an asking price agreed on for the smaller tracts; plaintiffs were to have five per cent, for lands sold at the minimum price, and one-half of the excess for those sold above that price, but no commissions on the value of the improve- ments ; plaintiff sold and defendant conveyed to the purchasers large quantities of the land, but he revoked the contract before all the land had been surveyed or the time expired. Held, that it was not contemplated that the land should all be surveyed and subdivided before sales were made, and the fact that it had not all been surveyed did not authorize revoking the con- tract; it appearing that plaintiff would probably have sold all the lands within the time limited, their damages should be com- PRINCIPAL AND AGENT. 267 puted at one-half the difference between what the lands would have brought at the average price of that already sold and the minimum price, excluding the two hundred acres with the im- provements, and deducting the probable expense of selling and the amount already paid by defendant. McLane v. Maurier, 28 Tex. Civ. App. 75, 66 S. W. 693, 1108. In order to entitle the prospective purchaser of a lot to dam- ages from an agent for his breach of his contract of agency to purchase the lot, the damages must be such as are the probable and natural result of the breach, and where the defendant was to purchase the lot for plaintiff at not to exceed a certain price, and purchased it at a less price, and took the title, in his own name and refused to transfer it to plaintiff, whose purpose in buying the lot was to erect a sanitarium thereon, plaintiff can not recover as damages the difference in the price of material and labor between the date of the contract and the time of the suit, time being not of the essence of the contract, and plaintiff having at the time no contract for the building at a fixed price, and there being no allegation or proof that defend- ant knew that the price of labor and material was going up, or that plaintiff was bound by a contract to build, -which he was to perform within a certain time, those damages are, under the circumstances, too remote and speculative to be attributed to defendant's breach of the contract. Harrison v. Craven, 188 Mo. 590, 87 S. W. 962. In an action for damages for the revocation of authority to sell land, nothing more than nominal damages can be recovered, when the agent fails to show that he could have made a sale on the principal's terms. Milligan v. Owens, 123 Iowa 285, 98 N. W. 792. In the case of a breach by a vendor of his contract to con- vey, the measure of plaintiff's damages is the amount which he would have received as compensation had defendant complied with his contract. Atkinson v. Peck, 114 N. C. 597, 19 S. E. 628; Young v. Metcalf Land Co. (N. D. Sup. '09), 122 N. W, 1101; Harris v. Van Vranlcen, 155 N". W. 65, 32 N. D. 238; Swartz v. Park, 159 S. W. 338, Tex. Civ. App. ; Justy v. Erro, 117 P. 575, 16 Cal. App. 519; Goldman v. Weisman, 143 1ST. W. 983, 123 Minn. 370; Van Patten v. Taber, 130 N. Y. Sup. 268 AMEBICAN LAW EEAL ESTATE AGENCY. 1055, 71 Misc. Rep. 610; Park v. Swartz, 222 S. W. 156, Tex. Civ. App. . Where an agent in completing a contract for his principal for the sale of her real estate, secures the agreed com- pensation, with the exception of taking a different security for the deferred payment amounting to $730 and interest, the measure of damages resulting to the principal from the act of the agent is the difference in value between the security contracted for and that recovered, not exceeding $730. Lunn v. Guihrie, 88 N. W. 1060, 115 Iowa, 501; Hindrick v. Brady (S. D. Sup. '09), 121 K W. 777. For the breach of a contract to pay a real estate agent a speci- fied sum as commissions for finding a purchaser, the measure of damages is the commission agreed to be paid. Tuffree v. Bind- ford, 130 Iowa, 532, 107 K W. 425; Davis v. Roseberry, 148 P. 629, 95 Kan. 411. Where a broker employed to sell land was to receive as his compensation anything that he could obtain for the land above a specified sum, in an action against the landowner for failure to perform the contract with the purchaser produced by plaintiff, the measure of damages was the amount of the com- missions earned and lost. Young v. Ruhwedel, 119 Mo. App. 231, 96 S. W. 228 ; Canfield v. Orange, 13 N. D. 622, 102 N. W. 313 ; Jones v. Hedstrom, 131 P. 145, 89 Kan. 294. The measure of damages for the breach of a contract employing a broker to sell land is either the compensation fixed by the contract, or a reasonable compensation for his services. Dal v. Fisher (S. D. Supreme '06), 107 N. W. 534; Hancock v. Stacey (Tex. Sup. '10), 125 S. W. 884; Johnson v. Buchanan (Tex. Civ. App. '09), 116 S. W. 875 ; Ga. Iron & Steel Co. v. Rogers, Brown & Co., 77 S. E. 213, 12 Ga. App. 429; E. A. Strout Farm Agency v. De Forrest, 183 N. Y. Sup. 119. The expenses incurred by the broker in advertising and sell- ing a client's land are not elements of damages, in an action to recover commissions alleged to have been lost by his client's refusal to convey to the purchaser whom the broker had ob- tained, and hence the admission of evidence of such expenses is prejudicial error. Burnet v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775. In an action by a real estate broker for com- missions, it was error to tell the jury, in answer to questions by their foreman, that they were not bound by any rule in PRINCIPAL AND AGENT. 269 fixing damages, as the court should have charged them that the rule was the customary commissions in such cases, or if the evidence was insufficient on that ground, what would be a fair compensation. Hartman v. Warner, 75 Conn. 197, 52 A. 719. Defendant prior to his purchase of certain land contracted to pay plaintiff, who negotiated the purchase, one-third of the profits to be derived from a subsequent sale thereof, no time for the sale was fixed, and defendant having died without making a sale, his personal representative repudiated the plain- tiff's interest and refused to sell, though the property had largely increased in value. Held, that decedent under the con- tract was required to make a sale within a reasonable time, and after repudiation of plaintiff's rights, he was entitled to recover one-third of the value of the land in cash, after deducting the purchase price, taxes and interest. Kaufman v. Bailie, 46 Wash. 248, 89 P. 548. Where a broker employed by the owners of land to effect a sale thereof, pretending to act for the principal, made a con- tract to sell the land to plaintiff's assignor, which was not bind- ing on the owners, and plaintiff's assignor paid $200 on the contract, plaintiff can recover, in an action for damages on the broker's warranty of authority as agent to sell. Rowland v. Hall, 106 N. Y. S. 55, 121 App. Div. 459. Where, in an action for a division of a broker's commissions defendant agreed to pay plaintiff one-half of the commissions earned on the sale, and defendant admitted receiving $287.50, it was proper for the court to assess the plaintiff's damages at one-half of such sum. McCleary v. Willis, 35 Wash. 676, 77 P. 1073; Jonston v. Porter, 131 P. 69, 21 Cal. App. 97. In a broker's action to recover division of commissions, held, only entitled to recover such a proportion of the entire commis- sion as the amount of land he was empowered to exchange bore to the whole property required by his client to make the exchange. Vich v. Foote, 136 N. W. 910, 155 Iowa, 664. Where, in an action by a broker for his share of the profits derived from a sale procured by him of a mine under an agree- ment to divide "in such proportion as would be just and right;" the evidence was in irreconcilable conflict as to the customary division, many witnesses testifying that the usual division was 270 AMERICAN LAW REAL ESTATE AGENCY. fifty per cent., while others testified that the customary division varied from two and one-half to ten per cent, of the net profits, a decree allowing ten per cent, was proper. Law v. Seeley, 37 "Wash. 166, 79 P. 606. Where a broker was employed to sell certain land for $75,000 V at a commission of $2,000, and after he had interested a pur- chaser his authority was revoked and the land was sold by his employer for $65,000, plaintiff was entitled to recover only his contract commissions, with interest thereon, and not the custom- ary commissions or reasonable value of his services. McGovern v. Bennett, 146 Mich. 558, 109 N. W. 1055, 13 D. L. N. 853; Finck v. Pierce, 103 N. Y. S. 765, 53 Misc. 554. "Where a real estate agent delivered a contract for the ex- change of property to the other party, in violation of his prin- cipal's instructions, the damage sustained by the principal in consequence of his refusal to perform the contract, and the expense of defending a suit by the other party's assignee for breach of the contract, and of a suit by the agent for commis- sions, are proper elements of recovery. Hawes v. Burkholz, 114 N. Y. S. 765. Where a principal makes sales of land within the time for which he had listed it with a broker, the measure of the broker's recovery is the profit he would have realized if he had been permitted to perform. Blumenthal v. Bridges (Ark. Sup. '09), 120 S. W. 974. Contra, Milligan v. Owens, 123 Iowa, 285, 98 N. W. 792. Sec. 358. In an action by a broker for compensation for procuring a purchaser before his authority to sell was wrongfully revoked, where the jury, on sufficient evidence, awarded the same amount that the parties had agreed on in case of sale, it is immaterial whether the contract price or the value of the services ren- dered should have been applied in ascertaining the damages. Hancock v. Stacy (Tex. Sup. '10), 125 S. W. 884. Where a broker sued on his contract for commissions, his dam- ages were limited to those he sustained by breach of the con- tract, and he was not entitled to any part of the profits made by defendants on a subsequent sale of the land. Montgomery y. Amsler (Tex. C. A. '09), 122 S. W. 307. PRINCIPAL AND AGENT. 271 Criterion of the financial ability of a purchaser procured by brokers to meet the purchasing is not his ability to procure the money to pay for the land, but to respond in damages for breach of his contract to purchase. Goldsberry v. Eades, 142 S. W. 1080, 161 Mo. App. 8. Where, through the owner's fault, the sale is not completed, the broker's commission is the value of his services, and not the dif- ference between the stipulated price and the price named in the contract with the purchaser. Sperry Realty Co. v. Merriam Realty Co., 150 1ST. W. 785, 128 Minn. 217. If defendant refuses to settle with plaintiff on commission notes for mortgage loan procured by plaintiff according to a con- tract between them, plaintiff is entitled to recover the value of the notes which, prima facie, would be their face value. Wade v. Douglass, 143 S. W. 830, 161 Mo. App. 348. Where defendant placed his property in the hands of plaintiff to find a lessee for the same, and plaintiff introduced parties to defendant to whom he subsequently leased his property on satis- factory terms, plaintiff would be entitled to the value of her ser- vices at the usual rate charged by brokers, irrespective of any special agreement as to the amount of her compensation. Kohen v. Kieley, 129 N. Y. Sup. 353. A broker who secures a tenant for a term, with an option to renew at the end of the term, is entitled to commission only on the rents for the original term. Allwin v. Earth, 146 N. Y. Sup. 960, 161 App. Div. 568. The commission on an exchange of real property should be based on the actual and not the trade value of the property. Cook v. Gordon, 137 P. 782, 68 Or. 557. Where a broker effects a sale of property for sum named, he is entitled to his commission on such sum, irrespective of the fact that there was a mortgage upon the property. Peters v. Holmes, 45 Pa. Super. Ct. 278. A real estate broker employed to sell land and house for a fixed term is not entitled, on a breach of the contract, to recover commission on improvements placed upon the land sold by the owner-, that not being within the contemplation of the parties when the contract was made. Hagan v. Nashville Trust Co., 136 S. W. 993, 124 Tenn. 93. 272 AMERICAN LAW REAL ESTATE AGENCY. Where a landowner authorized a broker to sell the land for $4 per acre net to such owner, and the owner, with knowledge of the fact, sold the land to broker's customer for $4, the broker could only recover the reasonable value of his services in the transaction. Haile v. Keller, 163 S. W. 373, Tex. Civ. App. . A broker who offers to a prospective purchaser a plat of lands he had for sale, at the same time making an agreement for a commission to be paid him on a sale; held, limited to a commis- sion on the land shown on the plat. Cleveland-Cliffs Iron Co. v. Gamble, 201 F. 329, 119 C. C. A. 567. Where a broker, who was to receive all over an agreed price as his commission, produced a purchaser who agreed to pay an agreed price, and to pay for the growing fruit in addition, but the owner refused to carry out the contract, the measure of bro- ker's compensation was the value of the fruit. Sill v. Ceschi, 140 P. 949, 167 Cal. 698. Where brokers were given an exclusive agency to sell lands for $20,000 net, and entered into a contract to sell the same for $26,- 000, and the owner revoked the agency, the broker is entitled to recover the damages sustained, and not the $6,000 stipulated in the contract. Williamson It. E. Co. v. Sasser, 103 S. E. 7i*, K C. Sup. . ) Sec. 301. Clerks. A contract whereby for a consideration moving from a tkird person, a clerk agrees to induce his employer to accept a lower price for property about to be sold than was first asked, can not be enforced, in the absence of a showing that the em- ployer knew that his clerk was serving the interests of the purchaser, such a contract being against good morals. Summers v. Gary, 74 N. Y. S. 980, 69 App. Div. 428. Where the clerk v of a broker employed to make a sale of land, who has access to the correspondence between his principal and the vendor, purchases the land himself, though the price paid be fair, and there is no actual fraud, he will be compelled at the suit of the vendor to reconvey such portion of the land as remains in his hands, and to account for the proceeds of what he has sold. Gardner v. Ogden, 22 N. Y. 327. PEINCIPAL AND AGENT. 273 Sec. 302. Conduct of broker. In an action to recover commissions for finding a purchaser it appeared that the contract provided that the terms of pay- ment should be $10,000 within five days, $5,000 additional on promises, etc., that at eight o'clock in the morning of the last day for making a sale, as provided by the contract, plaintiffs and one B. met defendants, and B. offered himself as a pur- chaser and tendered a check for $10,000 as the first payment; that the check was declined by defendant as not equivalent to money, whereupon they were informed that the money would be produced on the opening of the bank; that defendants said they would allow until 10 o'clock, and plaintiffs and B. endeav- ored to tender payment to defendant, but were eluded all day by the latter, and at 10 o'clock defendant sold the land to another person; B. had made no written contract for the pur- chase of the land. Held, that defendants were liable. Oullahan v. Baldwin, 100 Cal. 648, 35 P. 310 ; Beamer v. Stuber, 145 N. W. 936, 164 Iowa, 309. Sec. 302a. Conduct of owner. Act of Coal Co. in quoting price to another whereby a sale was made direct, instead of through brokers to whom the exclu- sive right to sell was given; held, a breach of the contract, and not a mere revocation thereof. ElTchorn Consol. Coal Co. v. Eaton, Rhodes & Co., 173 S. W. 798, 163 Ky. 306. Though he had given agency to sell to broker, owner had the right to dispose of property to a purchaser of his own finding without liability for commissions. Whittle v. Klipper, 165 N. W. 425, Iowa Sup. . Where, after discontinuing dealing with the customer procured by broker, the owner knowingly deals with such customer, or with a third party representing such customer, the element of good faith in the transaction is not material as respects the ques- tion of the liability of the owner to plaintiff for commissions, al- though the sale was at a much lower price than that offered by the customer through plaintiffs as brokers. Stone v. Kreis, 202 111. App. 43. CHAPTER III. SECTION'. SECTION. 303. Debt of another. or who exceeds same, binds 303a. When county not chargeable himself. with a debt. 307c. Broker not entitled to com- 304. Discretion. missions when lots were 305. Double liability. sold out of order. 306. Double capacity. 308. Exoneration. 307. Contract in excess of author- 309. Expenses. ity vested in agent. 310. Employment of engineer. 307a. Contract of broker varying 311. Fiduciary relations. from instruction will not 312. Failure of broker to report be enforced. offer. 307b. An agent who enters into a 313. False representations. contract without authority Sec. 303. Debt of another. Plaintiff, as broker, sold property of S. to C., and defendant was employed to draw a contract of sale, but on finding that S. had failed, defendant postponed drawing the contract, and later, though without title, he contracted with C. to sell him the property, and received from C. part of the price which he handed to S., whereupon title was transferred to him, and he made a conveyance to C. ; defendant at no time had any per- sonal interest in the property, and acted solely as the agent of C. for the purpose of transfer, and did not employ plaintiffs, nor agree to pay them a commission ; but before the title vested in defendant he told one of the plaintiffs that ' ' the matter would go through," that he was the owner of the property, and would make the contract himself, and if plaintiffs were anxious he would then pay half of the commissions in lieu of the whole when the contract was closed. Held, that the promise to pay plaintiff was either a parol promise to pay another's debt, or an original promise, without consideration, and therefore void. timythe v. Hack, 19 N. Y. S. 347, 64 Hun, 639. 274 PBINCIPAL AND AGENT. 275 Sec. 303a. When county not chargeable with a debt. A claim for commissions under a contract by which a county lists lands with a broker for sale for a commission; held, not a debt within the Con., Art. 2, Sec. 7, forbidding the creation of a debt unless provision is made at the time for its payment. Fvard Co. v. Sandifer, 151 S. W. 523, 105 Tex. 420, aff. judg. 134 S. W. 823, 63 Tex. Civ. App. 656. Sec. 304. Discretion. A power to sell "the one-half" of a lot of land, without specifying which, or whether an undivided one-half, empowers the attorney to sell one-half in severalty, and to exercise his own discretion as to which half. Alemany v. Daly, 36 Cal. 90. Where the plaintiff alleged an agreement whereby he was to sell certain land for enough cash to confirm the sale, meaning thereby enough to make the land good for the deferred pay- ment, and the balance to remain on time, it is not error to over- rule the defendant's objection that it is not a matter of law how much cash confirms a sale, for such a power carries with it some discretion. Taylor v. Cox (Tex. Sup. 1887), 7 S. W. 69; Smith v. Keller, 151 111. 518. 38 N. E. 250; Bourke v. Van Keuren, 20 Colo. 95, 36 P. 882. Sec. 305. Double liability. Where a purchaser is produced and a sale consummated by one of two brokers who have the property for sale, and a com- mission paid him by the owner, the fact that the other broker, has, by advertising, found a customer, and by interviews induced him to make the purchase, will not make the owner liable to him also. Daniels v. Columbia Heights Ld. Co., 9 App. Gas. (D. C.) 483; Winqns v. Jacques, 10 Daly (N. Y.) 487. An instruction that an employer of two or more real estate brokers may make a sale to a buyer produced by either, and is not bound to decide which is the primary cause of the pur- chase, is properly refused when the evidence shows that the employer of two brokers, sued by one of them, had full notice that he was the procuring cause of the sale. Eggleston v. Austin, 27 Kan. 245. The court properly charged that, as there 276 AMERICAN LAW REAL ESTATE AGENCY. are different kinds of sales of land, and such contract does not specify the kind, it is for the jury to determine from the evidence and the letters forming the contract, and the attend- ing circumstances, as to whether it included only the auction sales, or both auction and private sales, for which plaintiff was to receive a commission. Coolican v. Mil. & 8. St. M. Im. Co. 79 Wis. 471, 48 N. W. 717. Defendant, living in New York, placed a farm in the hands of plaintiff and S., two different real estate agents in Winnipeg for sale. Plaintiff found a purchaser at $12 per acre in cash, and informed defendant by letter. Defendant replied, accept- ing the offer, and asking plaintiff to call on S. and arrange regarding commissions, so as to avoid having to pay more than one commission. Plaintiff did not communicate with S., but introduced his purchaser to defendant's solicitor in Winnipeg. This purchaser paid the solicitor $500 on account, and was ready and willing to pay the balance, on receipt of the transfer. Meantime S. also made a sale of the farm at the same price. This latter sale was carried through by defendant, who paid S. the usual commission. Held, that the plaintiff was entitled to his commission, as he had done all that was necessary to earn it. Bell v. Rokeby, 15 Manitoba, 327. Broker employed to procure a customer with whom the - prin- cipal would enter into an option contract on terms agreed on be- tween the principals need not consummate the deal, and where the principal employs another broker therefor, he is liable for a double commission. Leadville Mining Co. v. Hempliill, 149 P. 384, 17 Ariz. 146. Where an owner placed his property in the hands of several agents for sale, and agreed to pay the commission to the first making a sale, the owner cannot be required to pay a commission to two agents, though one agent may possibly obtain benefits of work of another. House v. Earley, 147 S. W. 303, Tex. Civ. App. . Broker entitled to a commission from one principal, although known to have been the agent of the other party to the transac- tion. Gudgel v. Cook, 142 S. W. 1014, 146 Ky. 439. The fact that defendant intimates a possibility of liability to pay commissions to two brokers for the sale of the same prop- PRINCIPAL AND AGENT. 277 erty is immaterial, as such liability can not be predicated on her ignorance of the law. Myers v. Batcheller, 163 N. Y. Sup. 688, 177 App. Div. 47. Where contracts were made with two realty brokers, it was in- cumbent on them to show that both were to receive commissions for procuring purchaser and effecting a sale of the same prop- erty. Id. Where defendant agreed to pay plaintiff a commission for ex- changing property, and another party agreed to pay plaintiff a like commission, and the minds of the principals met, but de- fendant broke the contract, the broker could recover from him only the single commission due from defendant. Windman v. Bulkostein, 168 N. Y. Supp. 57. Where, in a broker's office where defendant listed a house for sale, a third party said, in his presence, he could furnish a buyer if the broker would split commissions, and the house was sold, such third party was not a partner of the broker, and settlement with him was not a settlement with the broker. Home Securities Co. v. Todd, 165 N. W. 204, Iowa Sup. . A party to an exchange, recognizing by offer that broker is acting for the other party, is liable for commissions as agreed, though the broker receives a commission from the other party. John Eeis & Co. v. Post, 170 N". Y. Supp. 610, 183 App. Div. 696. If each of two brokers performed his independent contract to procure a purchaser ready, able and willing to buy the property at the specified price, each will be entitled to compensation. Alton & Peters v. Merrit, 177 N. W. 770, Minn. Sup. . In an action by real estate brokers to recover a commission promised by a corporate stockholder if they succeeded in selling corporate lands, where the stockholder's written offer referred to the formation of a syndicate by the brokers, and it was uncon- tradicted that he was informed the brokers would not act unless they also received a commission from the syndicate, or corpora- tion orgainzed, recovery can not be denied on the ground that the brokers received compensation from the corporation organized. Hortman v. Selling, 189 P. 887, Or. Sup. . Where an agent to find a purchaser for realty reports an offer on the prescribed terms, and owner says that he is negotiating a sale to another, but that if it falls through the agent can go 278 AMERICAN LAW EEAL ESTATE AGENCY. ahead with his deal, and within a few days, and without the agent's knowledge, sells to some prospect brought to him by an- other agent, to whom he pays a commission, the first agent, if otherwise the proximate, efficient cause of the sale, may recover his commission, though he did not introduce his customer to the owner. Osburn v. Moore, 193 P. 892, Kan. Sup. . Sec. 306. Double capacity. The law will not permit a man to act in the double capacity of principal and agent. Dwight v. Blackmar, 2 Mich. 330. Where the owner of land agreed to sell it to real estate brokers, who at first stated that they were acting for themselves, but afterwards, before the contract was made, stated that they were acting as brokers, and the contract was made to a third person, proof of their employment before the making of the contract was not essential to their right to commissions. Shapiro v. Shapiro, 103 N. Y. S. 305, 117 App. Div. 817. That a broker contracted to secure a loan and perform other services for an agreed commission, advances money on the loan secured by a mortgage taken in the name of another as mortga- gee, intending to sell the mortgage, did not constitute him a dual agent so as to forfeit his commission. In re Williams, 252 F. 924. Sec. 307. Contract in excess of authority vested in agent. Where defendant authorized his agent to sell his farm for a certain sum, the first payment to be made on February 1st, a contract requiring the first payment to be made on March 1st, and obligating defendant to furnish an abstract of title, to pay taxes, payable after the purchaser was to take possession, and to credit on the price any insurance he might receive in consequence of the building on the land burning, was in excess of the agent's authority, and not binding on defendant. Strong v. Eoss, 33 Ind. App. 586, 71 N. E. 819 ; Staten v. Hammer, 121 Iowa 499 ; 96 N. W. 964 ; Fleming v. Burke, 122 Iowa, 433, 98 N. W. 288; Planer v. Equitable L. A. Soc. (N. J. Ch. '97), 37 A. 668; John Gund Brewing Co. v. Tourtelott (Minn. Sup. '09), 121 N. W. 417; Larson v. Newman (N. D. Sup. '09), 121 N. W. PRINCIPAL AND AGENT. 279 202; Turner v. "Baker, 225 Pa. 259, 74 A. 172; Deming Inv. Go. v. Coolidge (Colo. Sup. >09), 104 P. 392; Rand v. Conkrite, 64 HI. App. 208 ; Rattler v. Oliver, 138 HI. App. 200, affirmed 233 111. 536, 84 N. E. 652; Wynkoop v. Shoemaker, 37 App. D. C. 258; Van Winkler v. Harris, 72 S. E. 424, 137 Ga. 43; Merritt v. Hummer, 133 P. 816, 21 Colo. App. 568; Nelson v. W, U. Tel Co., 143 1ST. W. 833, 162 Iowa, 50 ; Harrington v. Dodge, 103 N. E. 919, 216 Mass. 461. See Sees. 310, 324, 330, 337, 337b, 339, 340, 342, 343, 354, 355, 363, 364, 372, 373, 381, 386, 427, 547, 548, 549, 597, 1041. Sec. 307a. Contract of broker varying from instructions will not be enforced. Where a broker to sell has power to sign a contract, if the contract signed by him varies from his instructions, the principal will not be bound by it, and it will not be specifically enforced against the latter. Morris v. Euddy, 20 N. J. Eq. 236; Spengler v. Sonnenberg, 88 0. S. 192. See also reference under Sec. 307. Sec. 307b. An agent who makes a contract either without authority or in excess of authority given, binds himself. An agent who makes a contract either without authority or or in excess of authority, binds himself. Moore v. Wilson, 26 Foster (N. H.) 332; Meech v. Smith t 1 Wend. (N. Y.) 315; Roberts v. Button, 14 Yer. 195; Royce v. Allen, 28 Ver. 234; Bank of Hamburg v. Way, 4 Strobh. (S. C.) 87; Layny v. Stewart, 1 W. & S. (Pa.) 222; Feeter v. Heath, 11 Wend. (N. Y.) 478; Heath v. Hoffhines, 152 S. W. 176, Tex. Civ. App. . Sec. 307c. Broker not entitled to commissions where lots were sold out of the order provided for. Persons employed to sell certain lots of land at prices named in a written contract of employment, the lots to be sold onl> in the order enumerated in the contract, were not entitled to commissions for procuring a purchaser of lots not in their order, though the owner's refusal was not based on that ground. Stearns v. Jennings, 128 Wis. 379, 107 N. W. 327. See also Sees. 340, 840. 280 AMERICAN LAW REAL ESTATE AGENCY. Sec. 308. Exoneration. A broker, through negligence, loaned on second mortgage some money which, for compensation, he had undertaken to loan on first mortgage security, but before the loan became due the lender, with other creditors of the borrower, signed a com- position releasing him from personal liability beyond the lien of the mortgage. Held, that this released the broker from his contingent liability to the lender. Nicolai v. Lyon, 8 Ore. 56. Sec. 309. Expenses. A real estate agent who is merely promised a commission for making a sale, is not also entitled to recover for expenses in- curred in procuring a purchaser. Reynolds-McGuinness Co. v. Green, 78 Vt. 28, 61 A. 556. See also Sees. 561, 543. Where a real estate broker fraudulently induced his prin- cipal to trade property on a valuation of $4,400, and sold it for $5,750, in an action by the principal against the broker for the difference, the latter could not recoup the amount of expenses incurred in making the sale, nor a portion of the profit paid to one who was associated with him in the fraud. Van Raulte v. Epstein, 202 Mo. 173, 99 S. W. 1077. A real estate agent, having property of others for sale, who requests a prospective buyer to go with him to see the prop- erty, can not charge the latter for his services and expenses in making such trip. Hale v. Knapp, 134 Mich. 622, 96 N. W. 1060. Where plaintiff was to have the proceeds of sale after pay- ment of the debts and the agreed broker's commissions, charges for traveling expenses and a sub-agent's fees in making the sale would be included in the commission. Lyttle v. Goldberg, 131 Wis. 613, 111 N. W. 718. A broker who has not written authority from the owner of realty to find a purchaser, as required by laws of 1915 (Comp. Laws, Sec. 6012), can not recover expenses incurred in connection with the sale, in the absence of a contract therefor. Weatherhead v. Cooney, 180 P. 760, Idaho Sup. . Sec. 310. Employment of engineer. It is not within the scope of the authority of persons em- ployed to collect the rents of a building to employ an engineer PRINCIPAL AND AGENT. 281 to take charge of the engine therein; a general agent having charge of this matter, and of the building generally, can not delegate his authority to others. Crosier v. Reims, 4 HI. App. 564. See references under Sec. 307. Sec. 311. Fiduciary relations. One who undertakes to collect rents and exercise control over property occupies a fiduciary relation which forbids placing himself in antagonism to his principal with respect to such property. Grumley v. Webb, 44 Mo. 444. In ejectment defendant claimed an equitable title; plaintiff's testator A., formerly owned the land and placed it with F. to sell, who entrusted it, with A.'s consent, to defendant; in a short time defendant wrote to F. that he had an offer, and enclosed a deed for A. to sign, with the name of the grantee omitted; on return of the deed signed and acknowledged, de- fendant inserted his own name as grantee and forwarded a check to F. for the price, who cashed the check and credited A. 's account ; the deed was void because of the failure to insert the grantee's name before delivery. Held, that on account of the defendant's fiduciary relations to A. he took no equitable title. Burke v. Bours, 92 Cal. 108, 67 Cal. 447, 28 P. 57, 8 P. 49. The relations between an agent for the sale of land and his principal are of a fiduciary nature, and the agent's acts in the course of his employment are governed by the same rules as those of a trustee. Butler v. Agnew (Cal. App. '08), 99 P. 395. With respect to services to be rendered by a real estate agent employed to negotiate a sale of land, a relation of confidence ex- ists between the agent and the owner. Ware v. Ware & Harper, 92 S. E. 961, Ga. App. . The owner of certain mineral land authorized plaintiffs to sell the same for $2,000, they to receive for their services all over that amount they obtained. F. contracted with the plain- tiffs to make the sale and receive half of the profits. F. there- after formed a corporation to buy the land, representing that the price to be paid the owner was $5,000, and that he was to receive ten per cent, thereof for making a sale. A sale was 282 AMERICAN LAW REAL ESTATE AGENCY. made, $3,000 being paid in cash, of which plaintiffs recovered $500, and a note for $2,000 being given by the corporation to the owner of the land for the balance. Held, that F. sustained a fiduciary relation to the corporation, and it was entitled to the land for the price actually paid to the owner, and hence plaintiffs were not entitled to recover any part of the amount agreed. to be paid by the note. Tagarden Bros. v. Big Star Zink Co., 71 Ark. 277, 72 S. W. 989. A contract to pay a broker a commission ; held, not to be voided by his fiduciary relations to his client, where inducing represen- tations were not false or misleading. Lundeen v. Ottis, 128 P. 335, 164 Cal. 183. A broker occupies a quasi fiduciary relation to his employer, and must act in good faith and disclose material matters. Cop- page v. Howard, 96 A. 642, 127 Md. 510. Sec. 312. Failure of broker to report offer. Where a broker who received a proposition to sell defendant's land did not accept it until after the expiration of the time designated in the offer for its acceptance, he is not entitled to commissions on the making of the sale. Short v. Willing, 1 Weekly Notes of Gas. (Pa.), 460; Drew v. Gone, 91 S. E. 1068, 10 Ga. App. 704. See also Sees. 235, 431, 471. Sec. 313. False representations. "Where defendant authorized plaintiff to sell real estate, agreeing to pay a commission, and in a printed form above the authorization set out particulars of the property, the selling price as $52,000 and the annual rental as $5,325, and plaintiff procured a purchaser ready, able and willing to buy on de- fendant's terms, the price being reduced to $49,500, and the customer was accepted, and the sale fell through only because defendant had misrepresented the amount of annual rental, plaintiff was entitled to commissions. Goodman v. Hess, 107 N. Y. S. 112, 56 Misc. 482. Contra, Crockett v. Grayson, 98 Va. 354, 36 S. E. 447. Compare Sec. 183. A real estate broker employed to procure a purchase of prem- ises for $8,000 in cash and assumption of two mortgages, one PRINCIPAL AND AGENT. 283 having two years to run and the other payable in install- ments extending over a period of seven years, procured a purchaser who agreed with the owner for the purchase of the premises and to pay $7,900 in cash and to assume the mortgages as described; the mortgages matured a year earlier than had been represented by the owner; the purchaser in- sisted on a formal contract embodying the terms accordingly, and the owner refused to execute such a contract; the pur- chaser was able to complete the purchase. Held, that the broker was entitled to his commissions. Frank v. Connor, 107 N. Y. S. 132. See also Sec. 454. "Where a broker, knowing of the existence of an incumbranee and contrary to his instructions executes an agreement for a sale free from incumbrances, and deceives his principal as to its contents, he can not recover commissions. Gulp v. Pow- ell, 68 Mo. App. 238. See also Sec. 183. If an agent effects a sale of the land of his principal by false representations, or other fraud, without the authority or knowledge of the principal, the latter is chargeable with such fraud in the same manner as if he had known or au- thorized it. Law v. Grant, 37 Wis. 548; F arris v. Gilder (T. C. A. J 09), 115 S. W. 645; Stelting v. Bank of Sparta, 117 N. W. 798, 136 Wis. 369; Adams v. Barter, 139 S. W. 489, 157 Mo. App. 370; Aranovitz v. Woolard, 152 N. Y. Sup. 11, 166 App. Div. 365. See also Sees. 99, 314, 315, 316. Where a contract for the purchase of land accorded to the pur- chaser the right to "back out" on paying a forfeiture, the vendor can not recover damages from the agents on account of their having, by false representations, induced the purchaser to forfeit the contract. Hetzler v. Morrell, 82 Iowa, 562, 48 N. W. 938. Broker not entitled to commissions for misleading purchaser so that he defaulted in carrying out his contract. Carrington v. Graves, 89 A. 237, 121 Md. 567. Where a real estate broker fraudulently misrepresents the financial ability of the purchaser, and the principal discovers that the purchaser is unable to carry out the contract, rescinds, the broker is not entitled to a commission. Meyer v. Keating Loan & Mtge. Co., 148 N. W. 452, 126 Minn. 409. 284 AMERICAN LAW REAL ESTATE AGENCY. Seller of property through real estate agent could not be bound by statements made by agency as to what disposition could be made of property after title passed out of him through agency. Columbia Sav. BTc & Trust Co. v. True, 93 S. E. 389, S. C. Sup. . Where land was not sold to procured purchaser by brokers' principal, but was sold to a third party, and by third party to procured purchaser, broker can not recover commissions without showing that broker's principal, after having sold land to pro- posed purchaser, fraudulently conveyed it to third party as a mere blind to deprive brokers of their commissions. Lorton v. True, 216 S. W. 54, Mo. App. . A broker, unless given more than his ordinary powers, viz., to find a purchaser willing to purchase his principal's property on terms and conditions fixed by the principal, can not bind his principal by statements to pur- chasers of meaning of words in a contract, especially where there is a limited partnership between the broker and the purchasers in the, purchase, so that the representation was by one partner to another. Qile v. Tantahawa, 187 P. 323, Wash. Sup. . CHAPTER IV. FRAUD. SECTION. SECTION. 314. Fraud of broker against his 318. Fraud of third persons principal. against broker. 315. Fraud of broker against third 319. Fraud of principals inter se. persons. 320. Debatable acts of broker not 316. Fraud of sub-agent. constituting fraud. 317. Fraud of principal against 321. Points of practice in actions broker. for fraud. Sec. 314. Fraud of broker against his principal. If a broker is guilty of fraud in executing his agency his right to commissions is forfeited. Jeffries v. Bobbins, 66 Kan. 427, 71 P. 852; Kurinsky v. Lynch (Mass. Sup. '09), 87 N. E. 70; Krhut v. Phares, 80 Kan. 515, 103 P. 117; Whaples v. Fahy, 87 N. Y. App. Div. 518, 84 N. Y. S. 793; De Armet v. Milner, 20 Pa. Super. Ct. 369; Hall v. Gambrill, 92 Fed. 32, 34 C. C. A. 190; Schleifanbaum v. Rundbaken, 81 Conn. 623, 71 A. 899; Moore v. Kelley, 162 S. W. 1034, Tex Civ. App. ; Martineau v. Hanson, 155 P. 432, 47 Utah, 549; Dean v. Roberts, 62 S. 44, 182 Ala. 221 ; Swaney v. Bradford, 165 N. W. 362, Iowa Sup. ; Sutherland v. Guthrie, 103 S. E. 298, W. Va. Sup. ; Hallman v. Lipscomb, 103 S. E. 513, S. C. Sup. . In one case it was held that a broker employed to find a buyer is guilty of fraud when he seeks to induce the prin- cipal to reduce the price. Hobart v. Shelburne, 66 Minn. 171, 68 N. W. 841. Contra, Gorman v. Hayes, 6 Okla. 360, 50 P. 92. See also Sees. 290, 291, 1046a. A broker may be de- prived of his right to commissions by the fraudulent conduct or misrepresentations of third persons in privity with him. Thwing v. Clifford, 136 Mass. 482. If a broker conceals the purchaser's name and puts forward a fictitious purchaser, it constitutes a fraud in law, and deprives him of his right to 285 286 AMERICAN LAW HEAL ESTATE AGENCY. commissions for procuring a buyer. Pratt v. Patterson, 12 Phila. (Pa.), 460, 112 Pa. St. 475. A broker who acts secretly for both parties to an exchange, purchase, sale or lease of property is guilty of fraud which deprives him of the right to recover commissions from either party. Tigarder v. Big Stone Zinc Co., 71 Ark. 277, 72 S. W. 789; Deutsch v. Baxter, 9 Colo. App. 58, 47 P. 405; Hanesley v. Monroe, 103 Ga. 279, 29 S. E. 928 ; Van Vlissingen v. Blum, 92 111. App. 145; Hampton v. Lackens, 72 111. App. 442; Boyd v. Dillingham, 33 111. App. 266; Simonds v. Hoover, 35 Ind. 412; Blake v. Stump, 73 Md. 160, 20 A. 788, 10 L. E. A. 103; Rice v. Wood, 113 Mass. 133; Walker v. Osgood, 98 Mass. 348; Farnsworth v. Hemmer, 1 Allen (Mass.), 494; Rosenthal v. Drake, 82 Mo. App. 358; Chapman v. Currie, 51 Mo. App. 40; Strowbridge v. Swan, 43 Neb. 281, 62 N. "W. 199; Camp- bell v. Baxter, 41 Neb. 729, 60 N. W. 90; Robinson v. Clock, 55 N. Y. S. 976, 38 App. Div. 67 ; Southack v. Lane, 65 N. Y. S. 629, 32 Misc. 141; Perkins v. Brainerd Quarry Co., 32 N. Y. S. 230, 11 Misc. 328; Plait v. Baldwin, 2 N. Y. City Ct. 281; Capener v. Hogan, 40 0. St. 203; Hann v. Bretler, 107 N. Y. S. 78; Bell v. McConnell, 37 0. St. 396; Connell v. Smith, 142 Pa. St. 25, 21 A. 793, 12 L. R. A. 395; Lynch v. Faller, 11 R. I. 311; Armstrong v. O'Brien, 83 Tex. 635, 19 S. W. 268 ; Shepard v. Hill, 6 Wash. 605, 34 P. 159 ; Meyer v. Hanchett, 39 Wis. 419; BelJin v. Wrin, 104 N. Y. S. 360; Cook v. Schaffrean. 102 K E. 715, 215 Mass. 444; Tracey v. Blake, 118 N. E. 271, 229 Mass. 57. Mechem on Ag., Sees. 37, 38. Unless the principals knew of the duplicate agency and con- sented thereto or acquiesced therein. Hanesley v. Monroe, 103 Ga. 279, 29 S. E. 928; Boyd v. Dillingham, 33 111. App. 266; Gann v. Zetler, 3 Ga. App. 589, 60 S. E. 283; Rice v. Wood, 113 Mass 133; Walker v. Osgood, 98 Mass. 348; Farnsworth V. Hemmer, 1 Allen (Mass.), 494; Redmund Bros. v. Hooks, 137 Iowa, 228, 114 N. W. 885; Rosenthal v. Drake, 82 Mo. App. 358; Chapman v. Currie, 51 Mo. App. 40; Strowbridge v. Swan, 43 Neb. 781, 62 N. W. 199; Dennison v. Gault, 132 Mo. App. 301, 111 S. W. 844; Campbell v. Baxter, 41 Neb. 729, 60 N. W. 90; Lansing v. Bliss, 33 N. Y. S. 310, 86 Hun, PRINCIPAL AND AGENT. 287 205; Bonwell v. AuU, 27 N. Y. S. 936, affirmed 29 N. Y. S. 15, 9 Misc. 65 ; Bonwell v. Howes, 1 N. Y. S. 435 ; Bellin v. Wein, 104 N. Y. S. 360; Plait v. Baldwin, 2 N. Y. City Ct 281; Willner v. Scale, 111 N. Y. S. 699, 127 A. D. 180; Co- pener v. Hogan, 40 0. St. 203; Bell v. McConnell, 37 0. St 396; Evans v. Rockett, 32 Pa. Super. Ct. 365; Connell v. Smtffc, 142 Pa. St. 25, 21 A. 793, 12 L. E. A. 395; Sullivan v. Tufts (Mass. Sup. '09), 89 N. E. 239; Lynch v. Faller, 11 K. I. 311; Meyer v. Hanchett, 39 Wis. 419; Selevar v. JsZe Harbor Ld. Co., 91 Minn. 451, 98 N. W. 344; Lakin v. Nordyke, 66 Iowa, 471 ; .Red Cypress Lumber Co. v. Perry, 118 Ga. 876, 45 S. E. 674; Berry v. Schmidt, 57 N. W. 172; Zimmerman v. Garvey, 81 Conn. 570, 71 A. 780; Arthur v. Porter (Tex. Civ. App. '09), 116 S. W. 127; Grasinger v. Lwcas (S. D. Sup. '09), 123 N. W. 77; Lipscomb v. Mastin (Mo. App. '10), 125 S. W. 1177. If a broker has an individual interest in the transaction he is employed to negotiate, and fails to disclose the fact to the principal, this constitutes a fraud which deprives him of the right to compensation for his services. Collins v. McClurg, 1 Colo. App. 348, 29 P. 299 ; Jeffries v. Bobbins, 66 Kan. 427, 71 P. 852; Buck v. Hozeboom (Neb. Sup. '02), 90 N. W. 635; Ryan v. Kahler (Tex. Civ. App. '98), 46 S. W. 71; DeL'~ Archerie v. Rutherford (Wash. '09), 102 P. 1033; Forbes v. Davis, 200 111. App. 378. If a broker in negotiating a contract practices fraud on the owner, and the other party is privy thereto, or has knowledge thereof, the owner is not bound thereby, and it was not necessary in a suit to recover the lands that the owner should offer to restore what he had received before he could demand restitution. Healey v. Martin, 68 N. Y. S. 413, 33 Misc. 236. Where the broker for the purchaser also represents the vendor, the transaction is not binding, irrespective of actual fraud, with- out the intelligent consent of both parties. Ferguson v. Gooch, 94 Va. 1, 26 S. E. 397, 40 L. R. A. 234; Whitney v. Bissell, 146 P.. 141, 75 Or. 28, L. R. A. 1915 D, 257. Where defendant contracted for a sale of land through a real estate agent, and subsequently received a payment of in- terest which the agent had received from the vendee, but she 288 AMERICAN LAW REAL ESTATE AGENCY. had not left the contract with him nor authorized him to col- lect; subsequently she sold to the agent her interest in the contract, and he sold said interest to the plaintiff, who paid the agent therefor, and at the agent's instance defendant made a deed to plaintiff, and subsequently, at the instance of the agent, gave a deed to the original vendee; such vendee had made full payment to the agent, but he had not paid the money over to defendant; two witnesses testified that defend- ant acknowledged drawing the contract and deed to the orig- inal vendee, and that the agent had acted for her. Held, that there was no evidence to show that the real estate agent in re- ceiving payment from the vendee after such agent had bought the contract from defendant received it as her agent, so that plaintiff could recover from defendant on the money counts as for money received to plaintiff's use. Rhode v. Marquis, 135 Mich. 48, 97 N. W. 53. Compare Frank v. Levy, 10 Ohio Cir. Ct. E. 554. The owner of city lots employed two persons, associated to- gether as real estate agents, to sell them, and fixed the price at $14,000; a purchaser was secured by the agents at $16,000, to whom a deed was executed direct by the owner, the agents accounting only for $14,000, claiming that to be the full amount received, and being paid a commission thereon by the employer; on discovering that $16,000 had been received from the purchaser, the owner first demanded a return of the check given for commissions, which was returned, and then sued the agents for the additional $2,000 and recovered; the judgment being right on the merits, and the issues all having been found in favor of the plaintiff, and well supported by the evidence, it must be affirmed. Collins v. McClurg, 1 Colo. App. 348, 29 P. 299; Babcock v. De Mott, 160 Fed. 882; Tate v. Aitken, 5 Cal. App. 505, 90 P. 836; Borst v. Lynch, 133 Iowa, 567, 110 N. W. 1031; Dater v. Jackson, 76 Kan. 568, 92 P. 546; Fulton v. Waiters, 28 Pa. Super. Ct. 269, reversed 216 Pa. St. 56 ; Hall v. Kellogg, 94 S. W. 389, 42 Tex. Civ. App. 636 ? Lee v. Pattillo, 105 Va. 10, 52 S. E. 696; Easterly v. Mills (Wash. Sup. '09), 103 P. 475; Forbes v. Thorpe, 95 N. E. 955, 200 Mass. 570; Middlefork Cattle Co. v. Todd, 144 P. 641, 49 Mont. 259; Waterbury v. Barry, 130 N. Y. Supp. 517, 145 App. PRINCIPAL AND AGENT. 289 Div. 773; 28 L. E. A. (N. S.) 952; Ratliffe v. Cease, 164 P. 1091, 100 Kan. 445; McBride v. Campredon, 171 P. 140, L. R. A. 1918 D, 407, -- N. M. Sup. ; Sutherland v. Guthrie, 103 S. E. 298, W. Va. Sup. . Defendants, brokers, being authorized by plaintiffs to sell land for $2,300, intrusted the matter to G, an employe, who persuaded one S to take the land for $2,300, promising that defendants would raise the money for him; defendants failed to raise the money, whereupon S begged G to find some one to take the contract off his hands and save him the $100 paid to plaintiff; defendants having then disposed of part of the land to the amount of $600, H, an employe of defendants, with knowledge of the facts, agreed to take over the contract, S to take another part of the land for $600, counting in his $100 paid; these two sales for $600 each amounted to half of the land; plaintiff not knowing that H was an employe of defendants gave him a deed, and received from him $2,300, less $200 commissions paid defendants; H later sold the rest of the land for $2,100. Held, that defendants and H were guilty of a legal fraud on plaintiff, and must, as trustees, ac- count to him for the profits realized. Powers v. Black, 159 Pa. St. 153, 28 A. 133 ; Mowbry v. Randolph, 1 Cal. App. 421, 94 P. 403. One who, knowing of an opportunity to sell for $30 an acre, and then knowing the court would not allow a third of the purchase money as commissions, gets an ostensible purchaser, at a smaller price, as a means of passing title, is precluded from obtaining a commission by his fraud on the court of which the receiver was an officer. Ryan v. Kahler (Tex. Civ. App. '98), 46 S. W. 71. M's agent agreed to pay plaintiff a commission for selling M 's land, and defendant offered to exchange his land there- for and for $210 in addition; plaintiff submitted the proposi- tion to M's agent, who accepted it, and an agreement for ex- change was executed by such agent in accordance with de- fendant's proposition and placed in plaintiff's hands to have defendant sign it; without disclosing the fact that the agree- ment for exchange had already been executed by M, plaintiff told defendant that a trade could be made, but defendant 290 AMERICAN LAW EEAL ESTATE AGENCY. said he would pay no commission, but would trade even, if such a trade could be effected, and executed a written agree- ment to that effect; the exchange was duly made on the terms first proposed by defendant, and the $210 paid over to him. Held, to show that plaintiff was acting as M's agent, and that he was not entitled to recover the $210, or any other commis- sion from defendant. Wilson v. Webster, 88 Iowa, 514, 55 N. W. 571 ; Braden v. Randies, 128 Iowa, 653, 105 N. W. 195. Where it appears that a real estate agent employed to sell land had acted in similar transactions for the vendor, that after making the sale the agent was active in assisting the vendee's agent in clearing up some defects in the title; that he filled up a deed and carried it to the vendor to sign, and then took it away, without objection on the part of the ven- dor, delivered it to the vendee's agent and received the pur- chase money, which he appropriated to his own use, and that the vendor subsequently admitted to disinterested persons that she had authorized the agent to collect the money, the loss thereof must fall on the vendor, under whose authority the agent acted. Frank v. Levy, 10 Ohio Cir. Ct. R. 554. Com- pare Rhode v. Marquis, 135 Mich. 48, 97 N. W. 53. If a real estate agent authorized to sell land at a given price, three years after, when the value has greatly advanced and is rapidly rising, sells the same at the price named, and at a great sacrifice, without informing the principal of the rise in value, this will be such a fraud upon the principal that a court of equity will refuse to enforce a conveyance to the purchaser. Proudfoot v. Wightman, 78 111. 553. See Wil- kinson v. Churchill, 114 Mass. 184. Defendants signed and acknowledged a note and deed of trust, and left them with their agent, a professed real estate and loan broker, for the purpose of having him obtain the amount of the note from complainant, to whom the note was made payable; the agent presented the instrument to com- plainant, who paid over to him the amount of the note in good faith, and took the note and deed ; the agent fraudulently reported that he could not use the note and trust deed, and in the presence of one of the defendants tore up and destroyed what purported to be said note and trust deed. Held, that PRINCIPAL AND AGENT. 291 defendants were not entitled to be relieved against the enforce- ment of the instrument. Kallbom v. Lipp, 20 111. App. 414. See Sees. 99, 313, 315, 316. Plaintiff authorized defendants to sell his land for a cash payment and notes, and on their representation that they had found a purchaser, and the cash payment and notes were ready to be delivered to him, executed and gave them a bond for title, blank as to the name of the purchaser; defendant failed to deliver the cash and notes on demand of plaintiff, and af- terwards filled in the bond with the name of a purchaser. Held, that defendants' authority as plaintiff's agents to use the bond for title determined when they failed to deliver the cash and notes. Patton v. Cook, 83 Iowa, 71, 48 N. W. 994. An agent employed to sell land, who becomes the purchaser and conceals from the principal that a greater price might have been got from another, is guilty of fraud, and the con- tract ought to be vacated; he will be compelled to reconvey the land on payment of the purchase money, or so much as has been paid, and to account for the rents and profits re- ceived by him. Moseley v. Buck, 3 Munf. (Va.) 232; Rod- man v. Manning (Or. Sup. '09), 99 P. 657, 1135. Where one intrusts money to an agent to purchase land for him, it is a fraud for the agent to purchase the land in his own name and for his own benefit, and equity will interpose for the relief of the principal by compelling a conveyance to him of the land so purchased by the agent. Ehea v. Puryear, 26 Ark. 344; White v. Ward, 26 Ark. 445; Harrison v. Craven, 188 Mo. 590, 875 S. W. 962. If an agent effects a sale of the land of his principal by false representations, or other fraud, without the authority or knowl- edge of the principal, the latter is chargeable with such fraud, in the same manner as if he had known or authorized it. Law v. Grant, 37 Wis. 548; Bagley v. Paris, 179 P. 795, -- Wash. Sup. . Compare Harrison v. Lakeman, 189 Mo. 581, 88 S. W. 53. Where one takes a conveyance from an agent authorized to sell and convey the land, knowing of the fraud or breach of trust of the agent, he can not insist on the validity of the sale. Morris v. Terrill, 2 Rand. (Va.), 6. See also Sec. 845. 292 AMERICAN LAW EEAL ESTATE AGENCY. Defendant contracted with the owner of land for an option on it for a certain time, and at a certain price, and, if he effected a sale, he was to receive a commission therefor; also, for an extension of the time he should pay $200 which, in case he should "buy the land or find a purchaser" therefor, was to be deducted from the price; defendant then contracted with plaintiff, a non-resident, to "procure the purchase for and con- veyance to" plaintiff of the land in question at a much higher price, to act as plaintiff's agent in the management of the land, that all the proceeds of the sales should be applied to the reimbursement of plaintiff, with five per cent, interest and expenses; that the surplus should be equally divided between plaintiff and defendant; defendant appropriated the difference between the amount received from plaintiff and the sum paid to the vendor, concealing from plaintiff the difference in price. Held, that plaintiff could recover the amount so retained by the fraud of the defendant. Hewitt v. Young, 82 Iowa, 224, 47 N. W. 1084; DeL'Archerie v. Rutherford (Wash. '09), 102 P. 1033. An agent for the owner of real estate conducted a negotia- tion for the sale of the same on behalf of the owner, on the one hand, and was really, on the other hand, purchasing for himself, jointly with an ostensible purchaser, although the transaction purported to be entirely between the owner and such ostensible purchaser. Held, that the transaction was a constructive fraud upon the owner, and that a purchase thus made could not be sustained. Hughes v. Washington, 72 111. 84. Where a real estate agent was acting under a contract with the owner of a lot, by which he was to receive a certain com- mission in the event he should sell the lot for not less than a certain sum, it was his duty before changing that contract for another more advantageous to himself, to impart to his principal all the information which he had, and especially to inform the principal of negotiations then pending for a sale of the lot, and his failure to do so was a fraud upon the prin- cipal's rights, and relieved the principal from all obligations to perform the new contract. Edmonson v. Baker, 12 Ky. L. R. (abst.) 93. PRINCIPAL AND AGENT. 293 Defendant applied to a real estate agent for a mortgage loan; three unsatisfied mortgages were to be paid with the proceeds of the loan; plaintiff agreed with the agent to make the loan and gave the agent a check for the amount, taking a mortgage on the property, the agent assuring him that he would search the title and see that plaintiff had a first mort- gage, but not informing him of the outstanding incumbrances ; on execution of the mortgage defendant instructed the agent to pay off the three outstanding mortgages with a part of the money in his possession; the agent paid off one of the three mortgages only and appropriated the rest of the money. Held, that the payment of the amount of the loan to the agent was a payment to him as agent of defendant. Henker v. Schwicker, 73 N. Y. S. 656, 67 App. Div. 196; affirmed 174 N. Y. 298, 66 N. E. 971. In a suit against a real estate broker, a lawyer, by a former customer or client, to vacate certain deeds procured by him to be executed by her in his interest, and for the cancellation of an alleged compromise agreement confirming such deeds, it was held that, on a review of the evidence, showing, among other things, that the defendant had purchased one interest from the complainant for $1,175, worth $2,000, and that shortly prior thereto, he had collected over $800 for her, for which he failed to account, that whether, in view of the fidu- ciary relations of the defendant to the complainant, the bur- den was on him to show the validity of the transaction, the testimony, as a whole, was sufficient to justify a decree va- cating the deeds and cancelling the agreement. Holtzman v. Linton, 27 App. D. C. 241. Where a land-owner sued his brokers, who had effected a sale, to recover a portion of the purchase money which had been retained by them, on the ground that the contract was not binding on him, because he had been fraudulently induced to enter into it by the act of the defendants in not correctly reading the contract to him, and also on the ground that the contract had been nullified by the alteration thereof by de- fendants, an instruction that, if plaintiff signed the original contract, and defendants, in reading it to him had fraudu- lently deceived him, then the contract was not binding, was 294 AMERICAN LAW REAL ESTATE AGENCY. not erroneous, on the theory that the action was not one for the cancellation of a contract. Harrison v. Lakeman, 189 Mo. 581, 88 S. W. 53. Compare Law v. Grant, 37 Wis. 548. Where a broker employed to sell at the highest obtainable price makes an arrangement with the prospective purchaser to pay him a commission, this fraud deprives him of the right to re- cover from the vendor. Tasse v. Kindt, 125 Wis. 631, 104 N. W. 703 ; Raner*s Law & Coll Co. v. Bradbury, 3 Cal. App. 256, 84 P. 1007; New ell-Murdoch Realty Co. v. Wiclcham, 190 P. 359, Cal. Sup. . If a broker employed to purchase property overstates to his principal the price at which it may be bought, and appropriates the difference, the principal may recover the excess wrongfully ob- tained. Healey v. Martin, 68 N. Y. S. 413, 33 Misc. 236; War- ren v. Burt, 58 Fed. 101, 7 C. C. A. 105. As a general rule, where one is employed by the owner of property to sell it, he can not sell it to himself alone, or in company with others, without the consent of the owner; but in the present case there was evidence to show that the owner con- sented to the making of such a sale, provided that he should re- ceive a certain amount, without liability on his part for commis- sions. Mitchell v. Gifford (Ga. Sup. '10), 67 S. B. 197 (Sylla- bus). Plaintiff employed defendant as its agent to buy a mine for not to exceed $150,000. Defendant actually bought it for $90,000, concealed the fact from plaintiff, and fraudulently caused it to be conveyed to a confederate, and by representing that he had bought it for $150,000 induced plaintiff to execute a contract with the confederate, agreeing to buy the mine at that price, $20,000 to be paid in cash, $90,000 in one year and $40,000 in eighteen months. Plaintiff paid the cash payment, and after ob- taining a reduction of the remainder to $110,000, paid that sum also, thus by reason of deceit and fraud paid $40,000 more than the actual price for which defendant purchased for his account; held, that these facts alleged and found sufficiently made out a case of damages for deceit and fraud, and entitled plaintiff to a judgment of recovery for $40,000. Gt. Western Gold Co. v. Chambers, 101 P. 6, 155 Cal. 364; Mabry v. Randolph, 94 P. 403, 7 Cal. App. 424. PRINCIPAL AND AGENT. 295 Where a real estate broker received an offer of exchange which would be advantageous to his principal, and fraudulently mis- represents such offer and prevents an exchange, and the princi- pal's tenant easily consents to the transfer of lease to the prop- erty to be taken in exchange, and that the tenant's agreement is not in writing and voidable, is no defense to the principal's action against the broker for damages from the fraud. Maul v. Cole, 144 N. W. 247, 94 Feb. 714. Where a real estate broker fraudulently induced his principal to trade property on a valuation of $4,000, and sold it for $5,750, in an action by the principal against the broker for the differ- ence, the latter could not recoup the amount of expenses incurred in making the sale nor the portion of the profits paid the one who was associated with him in the fraud. Van Eaalte v. Ep- stein, 99 S. W. 1077, 202 Mo. 173; Stewart v. Preston, 137 P. 993, 77 Wash. 559. One who makes a fraudulent sale of his principal's property as agent, under a power of attorney, which entitled him to a share of the profits, and who has a secret interest in the purchase, on the cancellation of the deed and direction of an accounting, by the purchaser for the proceeds or portions resold by them, can not take anything under the provisions of the power of attorney. Snow v. Hazelwood, 179 P. 182, 102 C. C. A. 448, decree amend, and re. den., 181 F. 966, 104 C. C. A. 430. In a suit to cancel a conveyance taken by brokers fraudulently in their own name, on an exchange of land in behalf of their principal, the brokers have no claim to compensation on the con- veyance being set aside for the fraud. Dean v. Roberts, 62 S. 44, 182 Ala. 221. Where a broker employed to use his best endeavors to sell property at a sum not less than $20,000 for commission, sought to induce a corporation to take the property at about $50,000, $11,000 of which should go to him and the balance of the excess over 20,000 to stockholders, he was guilty of misconduct depriving him of his right to a commission. Sarikey v. Cramer, 131 P. 288, 24 Colo. App. 16; Schlerfenbano v. Eundlaken, 71 A. 899, 81 Conn. 623. A real estate broker, on being compelled to account for profits received from an unfair purchase for himself of the subject of 296 AMERICAN LAW EEAL ESTATE AGENCY. agency, is not entitled to allowance for collecting rents while he wrongfully withheld the property. Stemon v. Gavin, 99 K E. 663, 255 111. 480. Where a broker authorized to sell property for $1,600, to re- ceive $75 for a commission, sells for $1,700, but reported a sale for $1,600 to the broker's wife, giving her maiden name, and the principal repudiated the sale, the broker was not entitled to com- missions. Boll v. Martin, 187 111. App. 266. Where a real estate broker fraudulently misrepresents the finan- cial ability of a purchaser, and the principal, on discovering that tEe purchaser is unable to fully carry out the contract, rescinds in" proper manner, the broker is entitled to at least a portion of KIs commission. Meyer v. Keating Land & Mtge. Co., 148 N. W. 452, 126 Minn. 409. Contract between plaintiff and defendant looking to the pur- cKase of real estate at price fixed, by defendant's principal ; held, given in fraud of the owner so as to invalidate the contract. Tay- lor v. 'Nelson, 147 P. 1189, 26 Cal. App. 681. r & sale of real estate can not be sustained when one who acted as the ostensible agent for the vendor was in reality the secret Sgent of the purchaser, unless principal, after full knowledge, con- firmed the acts of the agent. 'Evans v. Brown, 125 P. 469, 33 "OH. 323. In an action for fraud in procuring contract for exchange of defendant's real estate for plaintiff's stock of goods, that defend- ant, real estate brokers, deceived plaintiff, their liability could not "be minified because they were acting as his agents in the trans- action. HfcCann v. Clark, 163 K W. 222, Iowa Sup. . Where defendant corporation, acting as brokers for plaintiff, sell at $1,200, itself purchasing at the price, less commission to it of $1,100, and resells for $2,000, having had that in view, all without disclosing the purchase for itself to plaintiffs of price received, it was liable for profits. Clark v. Rogers Foundry & 'Mfg. Co., 199 S. W. 576, Mo. App. . Though defendant, broker, with whom plaintiff listed property for sale or trade, procured plaintiff's signature to earnest money contract under which the purchaser agreed, in case of default, to forfeit such earnest money to defendant; held, that defendant was liable to plaintiff for amount of earnest money forfeited by PRINCIPAL AND AGENT. 297 purchaser, the insertion of the clause "for defendant's own bene- fit/' being unauthorized, and plaintiff's signature procured by fraud. Pederson v. Johnson, 172 N. W. 723, Wis. Sup. . That defendant broker had agreed to pay to another a part of the commission which he was to receive in no way affected his liability to his principal for earnest money forfeited by the buyer, and to which principal was entitled. Id. Sec. 315. Fraud of broker against third persons. If in negotiating a contract in behalf of the principal the broker is guilty of fraud as to the other contracting party, he is liable to him therefor in damages. Rice v. Porter, 21 Ky. L. E. 871, 53 S. W. 285, 22 Ky. L. E. 1704, 61 S. W. 266; Todd v. Bourke, 27 La. Ann. 385; Hardacre v. Stewart, 5 Esp. (Eng.) 103 ; Baker v. Brown, 82 Cal. 64, 22 P. 879 ; Hussey v. Michael, 138 P. 596, 91 Kan. 542 ; Holcanson v. Oatman, 131 K W. Ill, 165 Mich. 512, 35 L. E. A. (K S.), 423; Hack v. Grain, 177 S. W. 587, Mo. Sup. ; Carsin v. Schoenfeld, 166 1ST. W. 23, 166 Wis. 401, L. E. A. 1918 C, 162. If a broker employed to sell property which is subject to in- cumbrances misrepresents or conceals the fact that the prop- erty is incumbered, he is liable to the purchaser in damages. Eiley v. Bell, 120 Iowa, 618, 95 N. W. 170; CMsholm v. Gads- den, 1 Strob. (S. C.) 220; Arnot v. Biscoe, I Ves. 95 (Eng.) 27 Eng. Kep. Eeprint 914. Where an agent for the sale of a mining property repre- sented to a purchaser that he was to receive a certain com- mission on the sale from the owners, when in fact he was paid five times that amount, the price paid by the purchaser should be abated in the amount of the difference between the com- mission received and the one specified. Henry v. Mayer, 6 Ari. 103, 53 P. 590. An agent having authority to sell both real and personal property for a certain sum can not, without the consent of his principal, take over to himself the personal property on receiving the sum for the real estate. Northup v. Bathrick, 80 Neb. 36, 113 N. W. 808. Where agents for the sale of land concealed from the purchasers the fact that they were part 298 AMERICAN LAW SEAL ESTATE AGENCY. owners of the land, but instead, expressed an intention to pur- chase an interest themselves upon the same terms as they were selling to the purchasers, such representations constituted such a fraud as would avoid the purchase. Wren v. Moncure, 95 Va. 369, 28 S. E. 588. Where land stood in the name of a third party, the real owner procured a broker to sell the land who made false repre- sentations as to its value; the nominal owner of the land had title to a bond and mortgage given in part payment of the price. Held, that the fraud of the real owner and the broker was im- putable to the person in whose name they acted. Fairchild v. McMahon, 139 N". Y. 290, 34 N. E. 779, affirming 20 N. Y. S. 31, 65 Hun, 621. See also Sees. 99, 313, 314, 316. Where land was sold by a broker who made representations to induce defendant to purchase, which were known to the broker to be false, but were relied upon by defendant to his injury, plaintiff, availing himself of the benefits of the transaction, is bound by the representations, whether the broker was his ap- pointed agent or not. Williamson v. Tyson, 105 Ala. 644, 17 S. 336 ; Copeland v. Tweedle, 122 P. 302, 61 Or. 303 ; Perkins v. Or- field, 176 K W. 157, Minn. Sup. . See also Sees. 99, 313, 314, 316. The fact that one who was employed by the owner to procure a purchaser of realty violated in so doing his contract of employ- ment with a third person engaged in the realty business, did not defeat his right to recover his commission from the owner on procuring a purchaser. Pomarici v. Rosenblum, 120 N. Y. Sup. 756. The rule of caveat emptor does not apply where a broker au- thorized to sell land for $900 tells the customer, unacquainted with land values, that he has induced the owner to reduce the price from $1,500 to $1,200, and that at the latter price it is a bargain, and that the owner will not accept less. Hokanson v. Oatman, 131 N. W. Ill, 165 Mich. 512, 35 L. E. A. (N. S.), 423. A broker who, being authorized to sell land for $900 and to have a commission therefor, tells a customer who, to his knowl- edge, is ignorant of land values, that he has induced the owner to reduce the price from $1,500 to $1,200, and that at the latter price it is a bargain, and that the owner will not take less, PRINCIPAL AND AGENT. 299 whereby he induced a purchase, he pocketing the extra $300, is guilty of fraud and deceit, making him liable for the extra amount to the purchaser. Id. A buyer of real estate can not recover from brokers for mis- representation as to the amount of their commissions, and the lowest price the seller would take, though the brokers, by the misrepresentation, made a large profit at the expense of their principal, no damages resulting to plaintiff. McLennan v. Inv. Exc. Co., 156 S. W. 730, 170 Mo. App. 389. Landowners who employed a broker to procure a purchaser, held, not bound by his misrepresentations to defendants, with whom he entered into an agreement to jointly purchase the land, such misrepresentation not being made within the agency. Leg- geit v. Moore, 154 N. W. 804, 36 S. D. 288. Misrepresentations as to the character of land are within the duties of an agent employed merely to find a purchaser, with no authority to sell or exchange, and are binding on the principal. Martin v. Ince, 148 S. W. 1178, Tex. Civ. App. . Where a prospective purchaser of land agreed to pay $7,040, and executed a contract with certain brokers to hold it, and in- duced them, for a commission, to accept a money offer of $5,000, concealing the contract, such purchaser was a party to the fraud, and could not recover against the brokers who purchased of an- other for $5,000, and sold to the purchaser for $7,040, to recover the difference from them. Jines v. Astle, 170 S. W. 1081, Tex. Civ. App. . A contract employing an agent to sell land, and reciting that no misrepresentation of the agent shall be relied on by the pur- chasers, does not relieve the principal from liability to a pur- chaser executing a contract containing such a stipulation for the fraud of the agent inducing the purchase. Shepard v. Pabst, 135 N. W. 158, 149 Wis. 35. An action for fraud in an exchange of lands will not lie against owners of land, where they merely listed it with the broker for sale or exchange, and where he made fraudulent state- ments, relied upon, without owners' knowledge or approval. Dellwo v. Peterson, 180 P. 167, Idaho Sup. . Where a real estate broker acts for two parties with adverse interests in effecting exchange of lands, with the knowledge and 300 AMERICAN LAW REAL ESTATE AGENCY. consent of both, neither principal is liable to the other for the broker's tortious acts, without collusion or direct participation of one of the principals. Ringer v. Winkins, 183 P. 986, Idaho Sup. . Sec. 316. Fraud of sub-agent. Plaintiff, who had contracted with a real estate agent to co- operate with him in selling to a third person certain prop- erty, with knowledge that such person was willing to purchase at a certain sum, induced the owner to sell for less, so that he could make the difference. Held, that he could not recover from the real estate agent his agreed proportion of the com- mission. Talbott v. Luckett (Md. Sup. '94), 30 A. 565. A broker was employed to procure a purchaser for a farm within a specified time, at a price which should net the owner $11,000 and the broker $875, or such less sum as should be sat- isfactory to the broker's agent having charge of the transac- tion; the owner sold the premises to a purchaser procured by the agent of the broker for $11,000, and the purchaser paid the agent $100 for commissions. Held, that the owner, if he knew that the agent in conducting the sale violated the in- structions of the broker, was liable to the broker for commis- sions to the extent of $875, on the ground that he was guilty of fraud on the broker. Haven v. Tartar, 124 Mo. App. 691, 102 S. W. 21. See also Sees. 99, 313, 314, 315. A vendor of land receiving the benefits of a transaction is liable for fraudulent representations by the salesman, though he was only a sub-agent. Nelson v. Title & Trust Co., 52 Wash. 258, 100 P. 730. A real estate agent who, in placing land for sale with sub- agent, fixed the selling price, and knowing that the sub-agent represented to purchasers that this was the lowest price the owner would take, received the benefit of such representation, was chargeable with the damage to the purchasers from their reliance thereon. Estes v. Crosby, 175 N. W. 933, amend, or man. den., 177 K W. 512, -- Wis. Sup. . Sec. 317. Fraud of principal against broker. Defendant employed plaintiff to sell his farm and some per- sonal property, on an understanding that the plaintiff should PRINCIPAL AND AGENT. 301 receive a certain commission if he could procure a purchaser for $18,000, otherwise nothing; plaintiff secured a purchaser who bid $17,000 for the farm and defendant rejected the offer, and falsely represented to plaintiff that he had concluded to keep the property and settled with plaintiff for a nominal sum ; defendant then approached the bidder and sold him the farm and some personal property for $17,500, and sold the remain- der of the personal property on the public market for $720. Held, that the statement having been fraudulently made, de- fendant was liable for the agreed commission. Bowe v. Gage, 132 Wis. 441, 112 N. W. 469 ; Glentworth v. Luther, 21 Barb. (N. Y.) 145; McDermott v. Mahoney, 139 Iowa, 292, 115 N. W. 32; McGovern v. Bennett, 146 Mich. 558, 109 N. W. 1055, 13 D. L. N. 853. If a principal, in order to defraud the broker of his right to a commission, conveys the property to a third person for the benefit of the customer found by the broker, and the rea- son for the act being to conceal the same from the knowledge of the broker, the latter may sue for the commission; and it was error to dismiss the complaint because the proof sustained an action for fraud and did not prove the cause of action al- leged.' Martin v. Fegan, 88 N. Y. S. 472, 95 App. Div. 154; Glade v. E. III. Min. Co., 129 Mo. App. 443, 107 S. W. 1002. See also Sec. 4870. A principal conspiring with a sub-agent ta deprive the broker of his commission is liable to the latter therefor. Haven v. Tartar, 124 Mo. App. 691, 102 S. W. 21. See also Sees. 362, 487a. Eight to commission may not be defeated by the fraudulent act of owner in withdrawing the property from the broker prior to the making of a contract. Anderson v. Crow, 151 S. W. 1080, - Tex. Civ. App. . Before a broker can be said to have earned his commission, he must produce a buyer within the time specified in terms of agency, if time is limited, ready, willing and able to purchase at price designated by principal, but if principal by fraud defeats broker's efforts, case does not come within such rule. Ramezzano v. 'Avnasino, 189 P. 681, Nev. Sup. . 302 AMERICAN LAW REAL ESTATE AGENCY. Sec. 318. Fraud of third persons against broker. Where a vendee fraudulently conceals the fact that she pur- chased through a broker employed by the yendor, and represents that a third person was the procuring cause of the sale, whereby the vendor is induced to pay the commission to such third per- son, the broker can not sue the purchaser for the lost commis- sion, as the vendor's liability to him remains unaffected by such payment to the third person. Cohen v. Hirschfield, 16 Daly (N. Y.), 96, 9 N. Y. S. 512. A broker may be deprived of his right to commissions by the fraudulent conduct or misrepresentations of third persons in privity with him. Thwing v. Clifford, 136 Mass. 482. Sec. 319. Fraud of principals inter se. Where two persons owning real estate intrust one with the sale thereof, who has it conveyed to a third person for a price agreed upon, the money being paid by the joint owner with a view to acquiring title to the property, such an arrange- ment is a fraud on the party owning the other moiety. Eld- ridge v. Walker, 60 111. 230 ; Hughes v. Washington, 72 IU. 84. Where land stood in the name of a third party, the real owner procured a broker to sell the land, who made false rep- resentations as to its value; the nominal owner of the land had title to a bond and mortgage given in part payment of the price. Held, that the fraud of the real owner and the broker was imputable to the person in whose name they acted. Fairchild v. McMalion, 139 N. Y. 290, 34 N. E. 779. A real estate broker who produces one ready and willing to purchase, and an executory contract of sale has been entered into be- tween the principal and the proposed purchaser, but able to do so only by perpetrating a fraud on a third person, the. principal refusing to execute, is not entitled to a commission. Zittle v. Schlesinger, 46 Neb. 244, 65 N. W. 892; Moskowitz v. Hornberger, 46 N. Y. S. 462, 20 Misc. 558. Sec. 320. Debatable acts of broker held not to constitute fraud. A broker employed to find a buyer is not necessarily guilty of fraud because he seeks to induce his principal to reduce PBINCIPAL AND AGENT. 303 the price, even though he might know he could obtain the price asked. Gorman v. Hargis, 6 Okla. 360, 50 P. 92. Compare Hobart v. Sherburne, 66 Minn. 17, 68 N. W. 841. See also Sees. 290, 291. It is not an act of disloyalty after obtaining an option on land at the lowest price for which the owner would sell and suspecting that his employer would not take at that price, for the broker with his employer's knowledge to solicit other pur- chasers whom he informed that his employer should have the first right to purchase. Hinton v. Coleman, 76 Wis. 221, 45 N. W. 26. A broker negotiated a sale of plaintiff's land to defendant, but had the deed made out to a third person, who afterwards conveyed to defendant. A few weeks after the sale defendant agreed to let the broker sell the land for him at an advance, the profits to be equally divided between them. Plaintiff did not know at the time of the sale that defendant was the purchaser and there was then no arrangement or under- standing between defendant and the broker as to any resale of the property or division of the profits. Held, that there was nothing in the transaction in fraud of plaintiff, and the subsequent sale did not constitute a fraud on the vendor. Lawrence v. Lay ton, 145 111. 92, 34 N. E. 53. A real estate broker is not liable to a customer for false representations respecting lands, where he states that his in- formation is derived from his principal, and the facts respect- ing which the representations are made are not such as would be peculiarly within his knowledge. Griffing v. Diller, 21 N. Y. S. 407. If a broker acts as a mere middleman his conduct in con- cealing from each principal his agreement with the other is not fraudulent. Jarvis v. Schaefer, 105 N. Y. 289, 11 N. E. 634. An agent authorized by contract to sell real estate to any purchaser thereafter to be secured, is not guilty of fraud for failing to disclose the identity of the proposed purchaser, where it appears that the vendors neither asked nor made any at- tempt to ascertain who such purchaser was. Bank v. Garvey, 66 Neb. 767, 92 N. W. 1025, affirmed on rehearing 66 Neb. 767, 99 N. W. 666. 304 AMERICAN LAW REAL ESTATE AGENCY. Where a real estate agent with authority to sell his prin- cipal's land reports to another agent of the principal that he can not sell the land so as to net the principal a certain sum, and that he is making a sale for a greater sum, but that the excess will be retained by him as his commission, and no con- tract is shown that he shall receive any specified amount for his service, though the amount of the excess is not disclosed, the agent commits no fraud by not disclosing such amount. Deming Inv. Co. v. Meyer (Okla. Sup. '07), 91 P. 846; Ful- 'ton v. Waiters, 216 Pa. 56, 64 A. 860. Compare Sec. 456. In an action to recover a real estate broker's commissions, it appeared that the owners, in naming their price, had in- formed the broker that they were willing to sell for less, if necessary, and that a prospective purchaser who had obtained an option from the broker was, before the owners had reduced the price, negotiating to sell the land to a third person for less than the owners' upset price. Held, that the facts did not conclusively prove that the broker had acted in bad faith. Harvey v. Lindsay, 117 Mich. 267, 75 N. W. 627. Proof that an owner employing a broker to procure a pur- chaser allowed the broker to take as his commission a part of the money paid by the purchaser procured by him, in reliance on the broker's representations that the purchaser was able to and would consummate his purchase according to the con- tract entered into between him and the owner, and that the purchaser was insolvent, was insufficient to authorize a recov- ery by the owner of the commissions paid, on the ground of fraud of the broker. Moore v. Irvin, 89 Ark. 289, 116 S. W. 662. A real estate broker had a customer desirous of purchasing property of a particular character, but the customer had no definite intention of buying any particular property. The broker entered into negotiations with the owner to employ him to procure a purchaser. The customer purchased the prop- erty. Prior to the broker's employment the customer had not communicated with the owner, nor with any one representing him in relation to the purchase. The broker represented to the owner that he thought that he could produce a purchaser willing to purchase on the terms specified, on his being al- PRINCIPAL AND AGENT. 305 lowed a commission for so doing. Held, that the broker was not guilty of fraud in obtaining his contract to procure a pur- chaser, and he could recover his commissions. Larson v. Thoma (Iowa Sup. '09), 121 N. W. 1059. A broker does not forfeit his right to commissions on a sale of real estate that he was instrumental in bringing about, be- cause he had other real estate for sale, belonging to other per- sons, which he tried to sell to the same purchaser. Lemmon v. Macklem (Mich. Sup. '09), 122 N. W. 77. Land was listed with a real estate broker at a stated price per acre, there being no agreement as to commission. After some negotiations owner agreed to accept a less price per acre and to pay a stated commission. A certain amount was to be paid in cash and the balance by a mortgage. The broker made a contract at an advanced price, and of this he did not inform the owner. The agreement was not carried out, as the owner had, unknown to the broker, sold the land in question. Held, that as knowledge of the acts must have come to the notice of the owner, and when the transaction was consummated, even if the broker intended to demand an additional commission, though he was not legally en- titled to it, yet he was not guilty of fraud within Civil Code, Sec. 1203, providing that fraud is a question of fact and must be deducible from the evidence. Luce v. Ash, 132 N. W. 708, 28 S. D. 109. Where vendor's agent did not describe the land to the pur- chaser, but merely pointed it out on a map which both he and the purchaser believed to be correct, but which incorrectly showed a creek as running through the land, he was not guilty of fraudu- lent misrepresentations. Dashiell v. Christian, 152 S. W. 1112, Tex. Civ. App. . Brokers were entitled to receive commissions, though they in- duced the president of a corporation to agree to an unconscion- able contract, their conduct not amounting to such fraud as would deny them of all commissions. Bassick v. Aetna Expl. Co., 246 P. 974. Sec. 321. Points of practice in actions for fraud. The vendee's right to rescind because the vendor gave a secret commission to the vendee's agent is not affected by the 306 AMERICAN LAW EEAL ESTATE AGENCY. fact that a part of the commission paid by the vendor to the vendee's agent was for services previously rendered by such agent in former transactions. Lightcap v. Nicola, 34 Pa. Super. Ct. 189. See also Sec. 559. "Where the discovery of fraud in a contract for the purchase of land is not made by the vendee until after suit has been brought for the purchase money, the vendee has the right to set up the fraud as ground for rescission and as a defense to the suit, and he may do this where there is a delay of nearly two and a half months after the discovery of the fraud, if there has been no such change in the meantime as to make the rescission inequitable. Id. Compare Sec. 572. "Where a real estate broker fraudulently induces his prin- cipal to trade property on a valuation of $4,400 and sells it for $5,750, in an action by the principal against the broker for the difference, the latter could not recoup the amount of ex- penses incurred in making the sale, nor a portion of the price paid one who was associated with him in the fraud. Van Eaulte v. Epstein, 202 Mo. 173, 99 S. W. 1077 ; Great Western Oold Co. v. Chambers (Cal. Sup. '09), 101 P. 6. In an action to recover on a contract for commissions for a sale of real estate, in which defendant alleged that the con- tract was procured through fraud, and after plaintiff had ne- gotiated the sale, the burden of proof was on defendant. Stein v. Whitney, 23 Ky. L. R. 2179, 66 S. W. 820. Contra, Hanna v. Haynes, 42 Wash. 284, 84 P. 861. A broker employed to purchase land, who conceals from the principal the fact that the vendor will pay the broker a com- mission on making a sale, has the burden of proving perfect fairness in the transaction, and, in the absence of satisfactory proof, equity will consider him as guilty of constructive fraud. Hanna v. Haynes, 42 Wash. 284, 84 P. 861. Compare Stein v. Whitney, 23 Ky. L. E. 2179, 66 S. W. 820. An innocent vendor can not be sued in tort for the fraud of his agent in effecting a sale ; in such a case the vendee may rescind the contract and reclaim the money paid, and if not PRINCIPAL AND AGENT. 307 repaid, may sue the vendor in assumpsit for it, or lie may sue the agent for the deceit. Kennedy v. McKay, 43 N. J. L. 288. A recovery in an action by a principal against a broker for fraudulently representing that the worthless property on which the loan was made was good security, is not affected by the question whether he shared the money with or delivered any part of it to the pretended borrower. Rubens v. Mead, 121 Cal. 17, 53 P. 432; Van Eaulte v. Epstein, 202 Mo. 173, 99 S. W. 1077, supra. Although the owner of the land neither authorized another to sell it for him, nor has authorized the false representation made in the course of the sale, yet if such owner accepts the proceeds of the transaction, he ratifies the acts of his agent, and may be held liable for the fraud practiced by the latter. Krunner v. Beach, 25 Hun (N. Y.), 293. See Sec.. 24. The rule of law forbidding the admission of evidence of an oral agreement made prior to or contemporaneously with a written agreement, does not preclude the admission of evidence tending to show that the written agreement in question was fraudulently obtained, or that it resulted from accident or mu- tual mistake. Gulp v. Powell, 68 Mo. App. 238. It is immaterial whether the design is fraudulent or not, a sale by an agent of his own property to his principal can be set aside by the latter on discovery of the facts. Bain v. Brown, 56 N. Y. 285; Kutz v. Fisher, 8 Kan. 90; Ackeriburg v. McCool, 36 Ind. 473. See also Sec. 389b. Where the assignee of a purchaser of land from a broker sued the principal for breach of contract, defendant could not impeach the contract, on the ground that it was not signed by the principal, and for fraud, without pleading such de- fense. Kurinsky v. Lynch, 201 Mass. 28, 87 N. E. 70. Fraud of a broker forfeiting his commission in representing adverse interests may never be presumed, but must be found from substantial evidence. Maddux v. St. Louis Union Trust Co., 171 S. W. 669, 186 Mo. App. 138. CHAPTER V SECTION. 322. When a broker is and when not liable for interest. 323. Broker obtaining interest hostile to principal. 324. Improvement of property be- yond authority of agent. 325. Agent neglecting to place in- surance liable. 326. Illegal purposes. 327. Illegal contract. 328. Implied powers. 329. Joint owner condoning fraud liable. 329a. Liability of purchaser col- luding with agent. 330. Agent to sell has no power to grant license to cut tim- ber. 331. What a principal must do to escape liability. 332. Power confirming sales con- fers power to sell. 333. Power to sell land acquired afterward. 334. Power to sell land not con- veyed. 335. Power to sell land on credit, may receive payment. 336. Power to sell for settlement not violated, when. 337. Power to sell land, not power to lease. 337a. Authority of agent construed to authorize authority to sell, but not to convey real estate. 337b. Power to sell does not in- clude power to give an po- tion. 308 SECTION. 337c. Broker unauthorized to trans- fer principal's note and mortgage. 338. Agent buying liable for value of land warrants. 339. Authority to locate and sur- vey, no power to sell. 340. Power to sell in lots none to sell otherwise. 341. Broker not liable for mutual mistake as to power. 341a. Broker entitled to commis- sion on land sold through mistake of owner. 341b. Broker not liable to third parties for acts in represen- tative capacity. 342. Agent to sell land can take nothing but money. 343. Broker has no right to re- ceive Mexican money. 344. When broker need not tell principal what land sold for. 345. Agent knowing defect in title can not acquire. 346. Broker guilty of negligence barred commission. 347. Owner liable to prospective tenants for injuries. 348. Brokerage contract not set aside for fraud. 349. Broker liable for loss through. negligence. 350. Broker departing from in- structions liable. 351. Broker, when not liable for loss on forged notes. 352. Broker, when not authorized to collect notes. PBINCIPAL AND AGENT. 309 SECTION. SECTION. 353. Maker may pay when broker 361. When notice waived. has note. 362. When principal can not es- 354. Agent has no power to re- cape liability for commis- ceive before due. sions. 355. Agent to collect interest, no 362a. Oral agreement to act as power to collect principal. sales manager upheld. 356. Agent doing all business may 363. Agent to make written, can collect note. not make oral contract. 357. Debtor should see that agent 363a. A broker not entitled to corn- has security. mission on contract not 358. When broker entitled only to conforming with authority. nominal damages. 364. Agent under oral authority 359. Notice to agent. can not bind by written 360. Broker must give notice. covenants. Sec. 322. When a broker is and when not liable for interest. A real estate broker receiving money and not applying it to the purposes specified in the agreement under which he acted, within a reasonable time, is chargeable with interest. Harrison v. Long, 4 Desaus. (S. C.) 110. A broker is not lia- ble for interest on money of his principal unless in default, or unless he has made use of the money for his own profit. Williams v. Storrs, 6 Johns. Ch. (N. Y.) 353. Where a broker was only entitled to commissions out of the last three of a series of notes to be given by the purchaser for the property, which were to be executed as of September 1, 1902, and were to mature on the first days of July, August and September, 1907, the broker, on the principal's failure to complete the contract, was only entitled to recover interest on the contract commissions from August 1, 1907. Bankers' Loan & Inv. Co. v. Spindle, 108 Va. 426, 62 S. E. 266. Broker held entitled to recover interest on the value of his ser- vices in effecting a sale of timber land from the date the owner's liability was denied. Paschall & Gresham v. Gilliss, 75 S. E. 220, 113 Va. 643, Ann. Gas. 1913 E, 778. Sec. 323. Broker obtaining interest hostile to principal. Where a broker who procured a sale of bonds, secretly ob- tained an interest hostile to his principal, he was entitled to re- cover the commission paid him. Guidetti v. Tuoti, 102 N. Y. S. 499, 52 Misc. 657; Campbell v. Baxter, 41 Neb. 729, 60 N. W. 310 AMERICAN LAW EEAL ESTATE AGENCY. 90; Kuntz v. Tonnele, 84 A. 624, 80 K J. Eq. 373. See also Sec. 382. If vendor's broker, to whom purchaser had made payments, agreed to get purchaser out of the deal if agent could keep money so paid, he would be guilty of a breach of faith with vendor. State v. Skinner, 191 P. 148, Wash. Sup. . Sec. 324. Improvement of property beyond authority of agent. Unless specially authorized, a real estate agent has no right to contract for the improvement of property. Riverview Land Co. v. Dance, 98 Va. 239, 35 S. E. 720. See reference under Sec. 307. Sec. 325. Agent neglecting to place insurance, followed by loss, liable. An agent whose duty it is to insure the property of his principal, and who neglects to do so, is liable to the latter for any loss of property occasioned by the peril that he should have insured against. Strong v. High, 2 Rob. (La.) 103. See also Sees. 346, 349. Sec. 326. Illegal purposes. An agent of the owner of property is not presumed to have any authority to lease the premises for an illegal purpose. Stover v. Flower, 120 Iowa, 514, 94 N. W. 1100 Sec. 327. Illegal contract. Where the contract negotiated is illegal, the broker can not recover for his services, though his principal has received the money arising from it. B elding v. Pitkin, 2 Caines (N. Y.), 147 ; Skirvin v. Gardner, 129 P. 729, 36 Okl. 613. Sec. 328. Implied powers. (a) A non-resident owner employing a non-resident agent to sell, impliedly authorizes the latter to employ a broker to effect a sale. Eastland v. Maney, 36 Tex. Civ. App. 147, 81 S. W. 574. (&) If the contract of employment fails to state the terms of sale, terms satisfactory to the principal are implied. Fair- PRINCIPAL AND AGENT. 311 child v. Cunningham, 84 Minn. 521, 88 N". W. 15; Montgomery v. Knickerbocker, 50 N. Y. S. 128, 27 App. Div. 117. (c) A contract of agency will not be construed to be ex- clusive unless established expressly or by clear implication. 'Crook v. Forst, 116 Ala. 395, 22 S. 540; White v. Benton, 121 Iowa, 354, 96 N. W. 876; Kidman v. Howard, 18 S. D. 161, 99 N. W. 1104. (d} A revocation may be implied from circumstances. Brook- shire v. Brookshire, 8 Ired. (N. C.) 74. (e] Authority to sell and convey lands for cash includes authority in the agent to receive payment of the purchase money. Yerby v. Grigsby, 9 Leigh (Va.), 387. (/) Authority to make a contract for the sale of lands, au- thorizes the agent to receive so much of the purchase money as is paid in hand, on the sale, as an incident to the power of sale. Id. Lawrence Gas Co. v. Hawkey e Oil Co., 165 N. W. 445, Iowa Sup. . (g) A broker authorized to sell, partly for cash and partly on time, may determine the amount of the cash payment. Tay- lor v. Cox (Tex. Sup. '87), 7 S. W. 69. (h) The word "sell" in a power of attorney authorizing a party to sell or lease any and all real estate, etc., gives ample power to complete a sale by making a deed of convey- ance. Hemstreet v. Burdick, 90 111. 444. Compare Bacon v. Davis (Cal. App. '08), 98 P. 71. (i) A power of attorney to sell one-half of a tract of land imposes discretion to determine which half. Alemany v. Daly, 36 Cal. 90. 0') A power to do all things concerning the grantor's real and personal estate, gives power to make leases, with privilege of purchase. De Rutte v. Muldrew, 16 Cal. 505. (k) A power of attorney to sell, without restrictions, au- thorizes a sale of real estate, with covenants of general war- ranty. Schultz v. Griffin, 121 N. Y. 294, 24 N. E. 480 ; Jasper v. Wilson (N. M. Sup. '08), 94 P. 951. But see Sec. 418. (0 Under a general power to sell property the agent may bind his principal by a contract of sale. Haydock v. Stowe, 40 N. Y. 363. Compare Weatherhead v. Ettinger, 78 0. S. 104. (m) In the absence of an express agreement on the subject, 312 AMERICAN LAW EEAL ESTATE AGENCY. an agent employed to sell land is entitled to commissions on making a sale. Harrison v. Long, 4 Desau. (S. D.) 110. (n) Where defendant in employing a broker to sell land did not purport to bind himself individually, but to bind a corporation of which he was president, in an action on the contract, he can not be held individually liable for the com- missions, but may be held for breach of an implied warranty of authority to the extent of the damages resulting from the misrepresentation. Groeltz v. Armstrong, 125 Iowa, 39, 99 N. W. 128 ; Hochbaum v. Potter, 101 K T. Sup. 531 ; Hallheimer v. Eice, 169 N. Y. Sup. 1002. (o) Express authority of a village to borrow money and issue bonds therefor, includes authority to employ a person to procure a purchaser for the bonds, whether he be a broker or not. Arm- strong v. Village of Ft. Edwards, 159 N. Y. 315, 53 N". E. 1116. (p) The cashier of a bank having implied authority as its executive officer to contract for the disposal of lands acquired by the bank in the collection of its credits, will bind the bank by his contract to pay commissions for the disposal of lands placed in the hands of a broker, but which, through mistake in identity, the bank does not own. Arnold v. Nat. Bk. of Waupaca, 126 Wis. 362, 105 N. W. 828, 3 L. R. A. (N. S.) 580. Sec. 329. Joint owner condoning fraud liable for benefits received. A joint owner of real estate who consents to a listing there* of by his co-owner with real estate agents for sale, receives part of the consideration, and does not repudiate the sale made by the agents, after discovery that they were guilty of fraud, is estopped to deny connection with the fraud, but will be held liable only to the extent of the benefit actually received. Alger v. Anderson, 78 Fed. 729. See also Sec. 856. Sec. 329a. Purchaser of land joining therein with seller's agent liable to account for profits made. One who purchases land in behalf of himself and seller's agents, with knowledge that the agents were concealing their interest from the seller; held, liable to account for the profits to him. Fred Brown & Co. v. Cash, 145 N. W. 80, 165 Iowa, 221. PRINCIPAL AND AGENT. 313 Sec. 330. An agent to sell has no authority to grant a license to cut timber. An agent has no authority to license one to cut timber by virtue of his authority to bargain and sell land. Hubbard v. Elmer, 1 Wend. (N. Y.) 446. See references under Sec. 307. Sec. 331. What a principal must do to escape liability to the broker for commissions. A principal who obtains knowledge from his broker that an intending purchaser procured by the broker is the person of whom he had learned from another source as a possible pur- chaser, owes to the broker the duty of either terminating the agency or notifying him that he intends personally to conduct future negotiations, and on his failure to do so, the broker is entitled to commissions, although the sale is completed by the owner himself. Carroll v. Pettit, 22 N. Y. S. 250, 67 Hun, 418. Sec. 332. A power of attorney confirming all sales and leases confers power to sell. A power of attorney confirming all sales, leases and con- tracts of every description, confers a power to sell land. Sulli- van v. Davis, 4 Cal. 291. Sec. 333. Power to sell any of constituent's land authorizes the sale of that acquired afterwards. A power to sell any of the constituent's real estate, author- izes the attorney to sell real estate which the constituent ac- quires after the execution of such power. Fay v. Winchester, 4 Mete. (Mass.) 513; Burkey v. Judd, 22 Minn. 287. Sec. 334. Power to sell land not previously conveyed, author- izes sale of tract not conveyed. Under a power to sell all the land of the principal which the latter has not previously conveyed, the attorney is author- ized to sell land that his principal had sold but not conveyed. Mitchell v. Maupin, 3 T. B. Mon. (Ky.) 185. Sec. 335. Power to sell land, gave authority to sell on credit, to receive payments, etc. Where a power of attorney authorized an agent to sell "cer- tain lands," or any part or parcel thereof, for such sum or 314 AMEBICAN LAW EEAL ESTATE AGENCY. price, or on such terms, as to him shall seem meet, and for me and in my name to make," etc., "deeds for the same, either with or without covenants of warranty," it was held that the agent had authority to receive payments, and a payment to him was a good payment to the principal; if circumstances rendered it favorable for the interest of his principal, he might include other valuable considerations besides money in the con- sideration, and might sell an undivided interest in the prop- erty. Carson v. Smith, 5 Minn. 78; Babson v. Cox, 32 App. D. C. 542. Compare Sec. 53. Sec. 336. Power to sell land for settlement, not violated if shown to have been bought on speculation. A power of attorney to sell certain lands "for the purpose of making actual settlement thereof, to sign, seal and deliver sufficient deeds," etc., leaves it to the judgment of the attor- ney to determine whether the purchasers buy for the purpose specified in the power, and if there is no evidence of fraud on the part of the purchaser or attorney, the conveyance under the power will be valid, although it should afterward appear that the land was purchased, not for the purpose of settlement but on speculation. Spofford v. Hobbs, 29 Me. 148. Sec. 337. Power to sell land does not include power to lease or exchange it. A power to sell land does not include power to lease or exchange it. Trudo v. Anderson, 10 Mich. 357; Lampkin v. Wilson, 5 Heisk. (Tenn.) 555; Reese v. Medlock, 27 Texas, 120. See references under Sec. 307. Sec. 337a. Authority of agent construed to authorize contract- ing to sell, but not to convey the real estate. A having possession of certain property of B, under a pow- er of attorney to sell the same and execute the proper in- struments of transfer, afterward gave the charge of the same, with deeds and papers in his possession, to C. A thereupon wrote to C: "I wish you to manage (my property) as you would if it were your own, and if a good opportunity offers to sell everything I have, I would be glad to sell. It may be PBINCIPAL AND AGENT. 315 parties will come into San Antonio who will be glad to pur- chase my gas stock and real estate." Held, that C was there- by authorized to contract for the sale of the real estate, but not to convey it. Lyon v. Pollock, 99 U. S. 668. Sec. 337b. Power to sell does not include power to give an option. A written power to sell land does not include power to give an option, unless so expressed. Tibbs v. Zirkle, 55 "W. Va. 49, 46 S. E. 701, 104 Am. St. E. 977; Swift v. Erwin, 148 S. W. 267, 104 Ark. 459, Ann. Gas. 1914 C, 363. See references under Sec. 307. Sec. 337c. Broker to procure loan without authority to trans- fer principal's note and mortgage. Application to a mortgage company for a loan, stating that the broker was the agent of the applicant to procure a loan either from the company or from any other person upon the same terms, even if creating an agency, did not authorize the agent to procure the money by transferring the note and mortgage. Porter v. Wold, 127 P. 432, 34 Okl. 253. Sec. 338. Agent buying principal's share of land warrants for less than, liable for full value. Where an agent received land warrants to locate on shares and to sell the land, and bought up his principal's share of the land for less than its value, without informing him of the price for which a part of the land had been sold, it was held that he was accountable for the full value at the time he sold it. Taylor v. Knox, 1 Dana (Ky.) 391. See also Sec. 323. Sec. 339. Authority to locate and survey land confers no power to sell. An authority to locate and survey land confers no power to sell. Moore v. Lockett, 2 Bibb. (Ky.) 67. See references under Sec. 307. Sec. 340. Authority to sell in lots, conferred none to sell otherwise. Where an owner of land, a part of which was surveyed in lots, gave his agent a power of attorney to convey the same 316 AMEBICAN LAW EEAL ESTATE AGENCY. "in lots as surveyed by B", a conveyance by the agent to G of a portion of the land which had not been surveyed was held invalid as in excess of the authority under said power. Rice v. Tavernler, 8 Minn. 248. See also Sec. 307c, and ref- erence under Sec. 307. Sec. 341. Broker not liable for mutual mistake that he had authority to make a contract of sale. A real estate broker who represents that he has authority to sell certain land is not liable to a customer for the conse- quences of their mutual mistake of law in thinking that such authority carried with it the right to make a contract of sale. McReavy v. Eshelman, 4 Wash. 757, 31 P. 35. Sec. 341a. Broker entitled to commission for land erroneously sold by him through mistake of owner. The owner of two parcels of land listed them for sale with a real estate broker. After some months the broker wrote the owner, referring to one tract, while the owner had, in fact, sold this tract some time before, but did not notice that the descrip- tion referred to it, and allowed the broker to secure a purchaser; held, that his mistake was not such a mistake as would prevent the broker from recovering his stipulated commission. Luce v. Ash, 132 N. W. 708, 28 S. D. 109. Sec. 341b. Broker not liable for acts in representative capac- ity to third parties. A broker having contracted to obtain from his principal $150, as consideration for plaintiffs release of possession of land sold, the broker acted in a representative capacity only, and was not personally liable therefor. Harral v. Bridges, 162 S. W. 1001, Tex. Civ. App. . Sec. 342. Agent to sell land has no right to receive anything but money in payment for principal. An agent for the sale of land has no right to accept anything but money for his principal. Bevis v. Heflin, 63 Ind. 129 ; Mann v. Robinson, 19 W. Va. 49. See reference under Sec. 307. PRINCIPAL AND AGENT. 317 Sec. 343. Broker has no right to receive Mexican money for earnest money. A real estate agent who is authorized to accept a certain sum as earnest money is not thereby given power to accept Mexican money. Edwards v. Davidson (Tex. Civ. App. '04), 79 S. W. 48. See references under Sec. 307. Sec. 344. Broker given minimum price, all over to be Ms com- pensation for selling, need not tell principal what land sold for. The owner of land agreed to pay a broker all that he might obtain for the land above a minimum price per acre as com- pensation, and a fixed sum in addition; the broker sold the land, but refused to state for how much, or state that he had sold it at the minimum price. Held, that he was not deprived of his right to compensation. Fulton v. Waiters, 216 Pa. 56, 64 A. 860. Sec. 345. Agent knowing of defect in principal's title can not himself acquire title. If an agent discovers a defect in the title of his principal to land he can not misuse it to acquire title for himself, and, if he does, will be held as a trustee of the title for his principal. Ringo v. Binns, 10 Pet. (U. S.) 269; Gardner v. Ogden, 22 N. Y. 327 ; McMahon v. McGrow, 26 Wis. 614 ; Rogers v. Lock- ett, 28 Ark. 290. See also Sec. 294. Sec. 346. Broker guilty of negligence to injury of principal, barred commissions. Although the broker finds a purchaser who is willing to buy on the terms imposed by the principal, yet he is not entitled to a commission if the trade fails through his negligence, and by the insertion of a condition which the agent employing him had no authority to direct. Fisher v. Dynes, 62 Ind. 348. And this applies as well in the case of an exchange lost thereby to the principal. Stuart v. Stumph, 126 Ind. 580, 26 N. E. 553; HarJcness v. Briscoe, 47 Mo. App. 196 ; Smye v. Groesbeck (Tex. Civ. App. '02), 73 S. W. 972. See also Sees. 325, 349. 318 AMERICAN LAW REAL ESTATE AGENCY. Sec. 347. Owners liable for negligence to prospective tenants injured while examining building. Where the owner of a building employs brokers to obtain tenants and authorizes the broker to conduct their customers into the building, he is liable for injuries sustained by a cus- tomer while examining the building in company with the brokers and due to their negligence. Boyd v. U. 8. Mtge., etc., Co., 88 N. Y. S. 289, 94 App. Div. 413. Sec. 347a. Principal, when liable for negligent or tortious acts of insane agent. One who knowingly employs an insane agent should be held liable for negligent or tortious acts committed by such agent within the scope of his employment. Christian v. Columbus, etc. B. Co., 79 Ga. 460; 4 A. & E. Anno. Cases, 135. Sec. 348. When brokerage contract signed without reading will not be set aside for fraud. One who negligently signs a brokerage contract without read- ing it, relying on statements of the brokers as to its contents, is not entitled to have it set aside for fraud, when the signer had no right to rely on their statements. Kimmell v. Skelly, 130 Cal. 555, 62 P. 1067. Compare Sec. 52. Sec. 349. A broker whose principal -suffers loss through his negligence is liable to him therefor. A money lender to whom a sum of money is given to invest is bound to exercise reasonable skill and prudence; by his business he holds himself out as possessing competent skill to determine what reasonable care and prudence requires; if he fails to exercise these, and through his negligence loss occurs, he is liable to make it good. McFarland v. McClees, 5 A. 50, 1 Pa. Cases 504 ; Stewart v. Muse, 62 Ind. 385 ; Whitney v. Mar- tine, 6 Abb. (N. Y.) N. C. 72; Hindricks v. Brady (S. D. Sup. '06 ), 108 N. W. 332, 121 N. W. 777; Harlow v. Bartlett, 170 Mass. 584, 49 N. E. 1014; Hindricks v. Brady (S. D. Sup. '09), 121 N. W. 777. See also Sees. 325, 346, 260, 261, 271. TowsU v. Griffiths, 103 A. 192, N. J. Ct. of Err. and App. . PRINCIPAL AND AGENT. 319 Sec. 350. Broker departing from his instructions liable for loss arising therefrom. A broker who has instructions to buy for his principal mort- gages, or other first-class discount paper, who violates them and invests the money on his own judgment, is responsible for the consequent loss to his principal, though Civil Code, Art. 2987, declares that brokers shall not be responsible "for events which arise in the affairs in which they are employed." Soudieu v. Faures, 12 La. Ann. 746. See also Sec. 229, 230. Sec. 351. Brokers not liable for loss on forged note, where they acted in good faith and disclosed their principal. Note brokers are not personally liable for a loss on a forged note sold by them, when they advised the vendee at the sale that they were acting as agents and disclosed their principal. Bailey v. Galbreath, 100 Tenn. 599, 47 S. W. 84. Compare Sec. 574. See also Sec. 280. Sec. 352. Broker taking a note, payable at his office, not there- by authorized to collect. A broker who negotiates a loan and receives his commission from the borrower, taking a note payable at his office to the lender, is not authorized to receive payments on such note. Englert v. White, 92 Iowa, 97, 60 N. W. 224. Compare Sees. 255, 257, 356. Sec. 353. Where broker has note payable at his office the maker is warranted in paying him. Where a note is -payable at the office of a broker, it is the duty of the maker, in the absence of directions from the holder to the contrary, to tender payment there, and finding the note in the broker's possession, the maker has a right to assume that the broker has authority to receive payment thereof. Fifth Con. Church of Wash. v. Bright, 28 App. D. C. 229. See also Sec. 357. Sec. 354. Agent to receive principal and interest not author- ized to receive payment before due. An agent merely to receive the interest and principal of a note is not authorized to take the payment of the principal 320 AMERICAN LAW EEAL ESTATE AGENCY. prior to the same becoming due. Williams v. Pelley, 9 111. App. 346. See references under Sec. 307. Sec. 355. Agent to collect the interest not authorized to collect the principal. In a suit to cancel a deed of trust on the ground of payment to the lender's broker, the fact that the broker negotiated the loan and collected interest on the loan is insufficient to make the broker the agent to collect the principal, where the lender was in possession of the security. Heffereman v. Boteler, 87 Mo. App. 316. Compare Sec. 353, 357, also references under Sec. 307. Sec. 356. Agent who transacted all the business of the prin- cipal held agent to collect payment of note. Where an agent transacted all the business with reference to the collection of the principal and interest of debts secured by note and mortgage, and acted as the agent of the investor in the care and protection of the security and to deal with the security as the agent deemed best, with the full knowledge of the principal, payment of a note to such agent was payment to the principal. Pockin v. Knoebel, 63 Neb. 768, 89 N. W. 264. Compare Sec. 255, 352. Sec. 357. Debtor, before payment, should see that agent has the security. If a debtor owing money on a written security, pays or settles with another as agent, it is his duty, at his peril, to see that the person thus paid or settled with is in possession of the security. Corbett v. Weller, 27 Wash. 242, 67 P. 567. See also Sec. 353. Sec. 358. Unless broker proves he could have made a sale on revocation entitled to recover only nominal damages. In an action for damages for revocation of authority to sell land, nothing more than nominal damages can be recovered where the agent fails to show that he could have made a sale on the principal's terms. Milligan v. Owen, 123 Iowa 285, 98 N. W. 792. Contra, Sec. 300. PRINCIPAL AND AGENT. 321 Sec. 359. Notice to agent to bind the principal must be given while acting for the principal. Notice to an agent to bind the principal must be given to the agent while engaged in the business and negotiations of the principal, or when it would be a breach of trust in the agent not to communicate the knowledge to his principal. Pep- per v. George, 51 Ala. 190; Pringle v. Dunn, 37 Wis. 449. Sec. 360. Broker, on finding customer to buy, to be entitled to commissions must give principal notice. Although the broker finds a customer before the principal sells the property, he is not entitled to a commission if he delays to notify the owner until after a sale is made by the latter. Bears v. Hyland, 65 Minn. 150, 67 N. W. 1148 ; Barnett v. Gluting, 3 Ind. App. 415, 29 N. E. 154, 927 ; Burnett v. Ed- ling, 19 Tex. Civ. App. 711, 48 S. W. 775. See also Sees. 489, 558. Compare Sec. 871. Sec. 361. Notice waived where principal instructs broker to send prospective buyers to him. Where a real estate agent is instructed by the principal to send persons inquiring about the property to the latter, the agent is not required to notify the principal of the fact that he has sent persons to him, in order to recover commissions on a sale to any of such persons. Clifford v. Meyer, 6 Ind. App. 633, 33 N. E. 127, 34 N". E. 23. Compare Sees. 359, 360. Sec. 362. Principal can not reject offer through broker, and then sell and escape liability for commissions. Where a real estate agent employed to sell lands introduces the owner to a purchaser and negotiations are commenced through such introduction, the agent is entitled to his commissions though a sale is not effected at first, and the owner declares the transac- tion off, but afterward makes the sale himself, without the aid of the agent. Scott v. Patterson, 53 Ark. 49, 13 S. W. 419 ; Day v. Porter, 161 111. 235, 43 N. E. 1073 ; Somers v. Wescott, 66 N. J. L. 551, 49 A. 462. See also Sees. 317, 374a. 322 AMEEICAN LAW REAL ESTATE AGENCY. Sec. 362a. Oral agreement to act as sales manager upheld. An oral agreement employing plaintiff to act as defendant's sales manager, receiving 5% on all sales made by defendant's sales force or by plaintiff; held, not void because not in writing, under L. 0. L., Sec. 808, subd. 8. Sherman v. Clear View Or- chard Co., 145 P. 264, 74 Or. 240. Sec. 363. Agent authorized to make a written can not make an oral contract. An agent must closely follow the instructions of his prin- cipal; therefore, an agent authorized to enter into a "written contract" for the sale of land, can not enter into a verbal agreement for its sale. Berning v. Pierce, 5 Watts & S. (Pa.) 548. See references under Sec. 307. Sec. 363a. Broker not entitled to commissions on contract not in conformity with authorization. Under a contract providing that a broker on securing a pur- chaser shall receive a commission "when the contract for the sale is signed," the broker is not entitled to the commission on securing a parol offer which is accepted by the principal, where no contract of sale is signed, and the person making the offer fails to complete the purchase. Schlansky v. Hillman, 111 N. Y. S. 696. See See. 556. Sec. 364. Agent acting under oral authority can not bind principal by written covenants. An agent acting under parol authority can not bind his principal by a written covenant under seal, signed with the name of such principal; such an instrument is not, in any sense, the deed of the principal, unless delivered by him. Har- shaw v. McKesson, 65 N. C. 688. See references under Sec. 307. CHAPTER VI. SECTION. 365. Postponement by purchaser Broker earns commis- sions. 366. Undisputed possession for years Agent authorized. 367. Words "placed in hands of" do not give possession. 367a. The word "sell" means "to find a buyer". 367b. The phrase, "in any event", means "whatever may hap- pen". 368. Agent paying money Takes deed to self absolutely. 369. Principal taking land for cash liable to broker. 370. Principal should pay broker who produced purchaser. 370a. Landowner not liable to oth- ers his agents employ. 371. Pool to divide commissions bars recovery by broker. 37 la. Brokers may make oral con- tracts between themselves to divide commissions. SECTION. 372. Agent to make repairs, not permanent improvement. 373. Broker can not retain com- missions from purchase money. 374. Vendor refusing to sell liable for commission. 374a. Owner can not, by refusing to convey, avoid liability to broker for earned com- missions. 375. When refusing to sell broker not entitled. 376. Other property taken does not deprive broker of com- missions. 377. Broker refused land for com- mission may take cash. 378. Originally agreeing to take, on refusal, can not recover in money. 379. Release by one broker left other entitled to half of re- maining land. 380. Release of vendee does not deprive broker of fee. Sec. 365. Postponement by prospective purchaser, broker not defeated of commissions by sale through another. Where a broker put his principal in communication with a prospective purchaser for his lot, and the prospective pur- chaser postponed the proposition for the time being, but after- ward went to another real estate agent, who was known to have authority to sell the lot, and made the purchase from him at a slightly reduced price, it was held that the first agent having set on foot inquiries and negotiations that culminated 323 324 AMERICAN LAW REAL ESTATE AGENCY. in the sale was entitled to the commission therefor. Cunliff v. Hausman, 97 Mo. App. 467, 71 S. W. 368. Compare Sec. 370. Sec. 366. Possession undisputed for years raises presump- tion of authority of agent to convey. After many years undisputed possession of real or personal property under a conveyance executed by a person as agent, his authority will be presumed. Stockbridge v. West Stock- bridge, 14 Mass. 257, 261. Sec. 367. Words "placed in the hands of" do not give agent the right to the possession of the property. The expression "placed in the hands of to be sold" used in a contract by which one person agrees to sell land for another for a commission, does not confer on the agent a right to the possession of the real estate; it is a familiar form of expression used to indicate the appointment of an agent to sell property. Reeder v. Butler, 19 Pa. Super. Ct. 604. Sec. 367a. The word "sell" held to mean "to find a buyer". As used in a real estate broker's employment contract granting an "exclusive option to buy or sell" certain property within a stated time, the word "sell" means to find a purchaser for. Flem- ing v. Hattan, 142 P. 971, 92 Kan. 948. Sec. 367b. The phrase "in any event" held to mean "what- ever may happen". Where a written contract for the sale of real property by a broker provided that it should be maintained "in any event" until a certain date, the words "in any event" mean only "what- ever may happen," and did not extend the operation of the con- tract beyond the date fixed. Elsea v. Fassler, 154 P. 1067, 29 Cal. App. 187. Sec. 368. Agent buying for principal, paying purchase money and taking deed to himself, holds absolutely. Where a man employs an agent by parol to buy an estate, and the agent accordingly buys it, and no part of the considera- tion is paid by the principal and there is no written agreement PBINCIPAL AND AGENT. 325 between the parties, the principal can not compel the agent to convey the estate to him. Dorsey v. Clarke, 4 Har. & J. (Md.), 551; Pinnock v. Clough, 16 Vt. 500. Compare Sees. 462, 595. Sec. 369. Principal accepting property in lieu of cash, liable to broker for commissions. A broker is entitled to his commissions for effecting a sale where the principal without oh.iecting accepts property in lieu of cash. Clark v. Allen, 125 Cal. 276, 57 P. 985 ; Eabl v. John- son, 28 Ind. App. 665, 63 N. E. 580 ; Grether v. McCormick, 79 Mo. App. 325; Kennerly v. Somerville, 68 Mo. App. 222; S. E. Crowley Co. v. Myers, 69 N. J. L. 245, 55 A. 305 ; Showaker v. Kelly, 21 Pa. Super. Ct. 390; Thornton v. Moody (Tex. Civ. App. 93), 24 S. W. 331. See also Sees. 275, 376. Sec. 370. Principal should pay the broker who procured the purchaser. Where real estate is placed for sale in the hands of two independent brokers under an arrangement with the owner assented to by both of them that the commission shall be paid to the one selling the property, it is the duty of the owner to pay the commission to the one actually producing a purchaser and consummating a sale. Daniels v. Columbia Heights Land Co., 9 App. Cas. (D. C.) 483. See Winans v. Jacques, 10 Daly (N. Y.) 487. Compare Sec. 365. Sec. 370a. Landowner not liable to other agents whom his agent may employ. A landowner may select his own agent for the sale of his land without becoming personally responsible to other agents whom the first agent may employ to assist him in carrying out the undertaking. Lanhart v. Bean, 161 N. W. 464, Iowa Sup. . Sec. 371. Agreement between brokers to divide commissions bars recovery thereof. Where defendant employed plaintiff as his agent to effect an exchange of defendant's property, plaintiff being given discre- tion as to the valuation to be placed on the property, and 326 AMERICAN LAW EEAL ESTATE AGENCY. plaintiff and the agent of the owner with whom the exchange was made agreed to pool their commissions and divide the pool, the commissions being based on the valuation, plaintiff was not entitled to recover commissions. Quinn v. Burton, 195 Mass. 277, 81 N. E. 257; Levy v. Spencer, 18 Colo. 532, 23 P. 415; Norman v. Roseman, 59 Mo. App. 682; Armstrong v. O'Brien, 83 Tex. 635, 19 S. W. 268; Shepard v. Hill, 6 Wash. 605, 34 P. 159; Carder v. O'Neill, 207 Mo. 632, 106 S. W. 10; Plotner v. Chillian (Okla. Sup. '08), 95 P. 775; Peaden v. Marler, 189 P. 741, Okl. Sup. ; Whittle v. Klipper, 165 N. W. 425, Iowa Sup. . If the principals have knowledge of the pool and do not object thereto, the broker is not barred recovery of com- missions. Kurinsky v. Lynch (Mass. '09), 87 N. E. 70; Dearing v. Sears, 3 N". Y. S. 31. Compare Alvard v. Cook, 174 Mass. 120, 54 N. E. 499. Sec. 371a. Brokers may make oral contracts between them- selves to divide commissions. Rem. and Bal. Code, Sec. 5289, providing that an agreement employing a broker to sell real estate for a commission shall be void unless in writing, only applies to contracts between a land- owner and a broker employed to sell, so that brokers may make a valid oral contract between themselves to divide commissions from the sale of land. James v. Kehoe, 112 P. 19, 65 Wash. 281; Leigh v. Yancey, 120 P. 512, 67 Wash. 18; Orr v. Perky Inv. Co., 118 P. 19, 65 Wash. 281. Where the conditions of a written contract for an exchange of properties were not performed, and the broker, to induce the carrying out of the contract, orally agreed to reduce his commis- sion, and the contract was performed, the oral contract as to commissions was substantially performed, and the broker was entitled to recover, notwithstanding Rem. and Bal. Code, 5289. Leigh v. Yancey, 120 P. 512, 67 Wash. 18. Where a broker, under contract to procure a purchaser of real estate, employed a third person to assist in procuring a purchaser for a share of commissions, and the third person showed another how he could make money by purchasing the property, and the broker sold the property to him, the right of the third person to recover his share of the commissions was established. Casey v. Richards, 101 P. 36, 10 Cal. App. 57. PRINCIPAL AND AGENT. 387 Sec. 372. Authority to an agent to make necessary repairs, does not extend to permanent improvements. If one employed to manage property for its owner is empow- ered to make such repairs only as are necessary to preserve and protect the property from ordinary wear and tear, he can not charge the owner with the expense of permanent improvements, or of rebuilding after a fire. Beckman v. Wilson, 61 Cal. 335 ; Planer v. Equitable L. A. Soc. (N. J. Ch. '97), 37 A. 668. See references under Sec. 307. Sec. 373. Broker can not, unless authorized, retain commis- sions from purchase money. Where real estate was placed in the hands of brokers for sale, and they purchased it from the agent of the owner with power to sell, such agent had no legal right to retain com- missions out of the price received, in the absence of a specific agreement to that effect. Knott v. Midkiff, 114 La. 234, 38 S. 153. See also Sec. 285, and references under Sec. 307. Sec. 374. Vendor by refusal to sell, liable to broker for com- mission, though to be paid by customer, W. employed C. & B. to purchase a lot for him upon certain terms, stipulating that the compensation of the latter was to be deducted from the purchase money going to the vendor, and was in no event to be paid by W. Held, that W. would be liable to C. & R. for their proper fees in case of a violation of the contract by W. in refusing to take the property. Cavender v. Waddingham, 2 Mo. App. 551; Bird v. Blackwell, (Mo. App. '09), 115 S. W. 487. See also Sees. 197, 454. Sec. 374a. Owner can not, by refusing to convey, avoid lia- bility to the broker for earned commissions. An owner can not, by refusing to convey, avoid liability to the broker for services rendered in procuring a purchaser while the contract of employment was in force. Johnson v. Huber (Kan. Sup. '09), 103 P. 99. See also Sec. 362. Compare Sec. 375. It is sufficient to entitle a broker to his commissions that it appears that a sale was effected through his agency in procuring a purchaser, and his right is not affected by refusal of the seller 328 AMERICAN LAW REAL ESTATE AGENCY. to perform the contract made, whether in good or bad faith. Baldwin v. Jardine, Mathum & Co., 261 F. 861; Newman v. Lumley, 125 111. App. 382; Schneider v. Commons, 190 111. App. 121. Sec. 375. Principal refusing to sell, broker not entitled to commission, in the absence of an established custom. It is the custom of land agents or brokers in "Wisconsin to charge and receive three per cent, of the amount of the pur- chase money. K. verbally employed P., a land broker, to sell for him certain lands at a fixed price. P. found a person who was ready and willing to purchase on the proposed terms when K. refused to sell; P. then brought suit, declaring upon a con- tract or promise of K. to pay three per cent, of the purchase money agreeably to usage in such cases. But it was held that such rate of compensation and such implied contract depended upon the consummation of the sale. Usage in order to enter into and become a part of the law of contract or trade must be established so clearly and explicitly, and be so notorious that the party must be presumed to know it and to have contracted with reference to it. Power v. Kane, 5 Wis. 265. See Cavender v. Waddingkam, 2 Mo. App. 551. Compare Sec. 374a. Sec. 376. Broker not deprived of commissions as to part of consideration paid by other property. Where a broker produces an acceptable purchaser in the manner and under the agreement stated, he will not be de- prived of his commissions because the principal part of the consideration for the land by the buyer is other real estate which he owned. Driesbach v. Rollins, 39 Kan. 268, 18 P. 187. See also Sec. 275, 369. Sec. 377. Broker agreeing to take real estate for compensa- tion, on refusal can recover in cash. A broker who, after performance of his contract, agrees to take real estate as compensation, upon the principal's refusal to convey the realty, is entitled to recover the commission in cash. Morey v. Harvey, 18 Colo. 40; 31 P. 719. Compare Bai- ley v. Gardner, 6 Abb. N. C. (N. Y.) 147. See also Sec. 468. PRINCIPAL AND AGENT. 329 Sec. 378. Broker originally agreeing to take realty for com- pensation, on refusal, can not recover in money. The plaintiff, who was a real estate broker, agreed before certain commissions were earned by him, to take payment of them in lots of land, and afterwards selected the lots he would take; a deed thereof was duly tendered and refused. Held, that he could not recover the commission in money, on the ground that the agreement to convey the land was void. Bailey v. Gardner, 6 Abb. N. C. (N. Y.) 147. Compare Morey v. Harvey, 18 Colo. 40, 31 P. 719. Sec. 379. Release to owner by one broker left the other enti- tled to one-half of remaining land. An owner employed a broker to procure a purchaser for a tract of land; the broker, with the owner's consent, employed a third person to assist in procuring a purchaser ; the owner thereupon executed an agreement reciting that the broker and the third person were to receive any amount above $17,000 for the whole tract; a purchaser agreed to take a part of the tract at $20,000; the owner paid the broker his commissions, re- ceiving a receipt in full. Held, that the third person was en- titled to the half of the land remaining unsold, but not to any part released to the owner by the broker by his receipt in full, and objection to the contract sued on, on the ground that it was within the statute of frauds, comes too late after judgment. Ewart v. Young, 119 Mo. App. 483, 96 S. W. 420. Amendment allowable in Appellate Court. Bausch v. McConnell, 13 Ohio Cir. Ct. 640. Sec. 380. Release by vendor of vendee from his obligation does not deprive broker of right to commissions. A broker has earned his commissions when he has presented a customer whom the owner accepts, and evidences such accept- ance by entering into an enforceable, binding contract; the action of the vendor in releasing a vendee from his obligations, for reasons suiting his own convenience, can not affect the right of the broker to recover his commissions. Packer v. Sheppard, 127 111. App. 598; Ward v. Gobi, 148 Mass. 518, 20 N". E. 174; Beckwifh- Anderson Co. v. Allison, 147 P. 482, 26 Cal. App. 473; Levy v. Griffith, 74 S. 613, 113 Miss. 659. CHAPTER VII. SECTION. 381. Agent to collect rent not au- thorized to employ broker to sell land. 381a. Agents to rent and care for land may purchase for themselves. 382. Broker required to refund commissions when he has acted in bad faith. 383. Receipt by broker, signed by himself as agent, binds him individually. 384. Where agent gives receipt in name of principal, pur- chaser must look to latter. 385. Receipt in name of principal Purchaser may recall be- fore money is paid to him. 385a. Receipt of broker for pur- chase money bound owner. 386. Creditor authorized to col- lect rent can not pay therefrom his own debt. 387. Agent to collect rent must apply the same as directed by principal. 388. Broker acting in interest of others, not entitled to share in transaction for prin- cipal. SECTION. 389. Broker purchasing property not entitled to commissions for its sale. 389a. Agent can not become buyer of principal's property. 389b. When employed to purchase, agent can not sell his own property to principal. 389c. Circumstances under which agent has right to purchase the property for himself. 390. Broker liable for fraud of sub-agent. 390a. Sub-agent acting in good faith not liable for mis- take of his principal. 391. Sub-agent concealing fact de- prives broker of right to commissions. 392. Sub-agent exceeding authority bars commissions. 392a. Broker selling on terms varying from instructions. 392b. Broker departing from in- structions in making sales. 393. Principal not liable to bro- ker's sub-agent. 394. Broker not liable for poor sale by sub-agent. 394a. When agent without implied power to appoint sub-agent. Sec. 381. Agent to collect rent not authorized to employ bro- ker to sell land. The issue was, whether one executing a contract on behalf of a landowner had authority so to do, and it was shown that 330 PBINCIPAL AND AGENT. 331 he was authorized by one who was engaged in renting property and collecting rents for the landowner. Held, that the relations between the rent agent and the owner were not sufficient to warrant an inference of authority to empower the person execut- ing the contract. Topliff v. Shadwell, 64 Kan. 884, 67 P. 545 ; Hunn v. Ashton, 121 Iowa, 265, 96 N. W. 745. See also Sec. 392 and reference under Sec. 307. Sec. 381a. Agents to rent and care for land may purchase 1 for themselves. Agents to rent and care for land, not agents for the sale there- of; held, entitled to negotiate and purchase for themselves, though the owner did not know that they were the real purchasers. Fred Brown & Go. v. Cash, 145 N. W. 80, 165 Iowa, 221. Sec. 382. Broker required to refund commissions when he has acted in bad faith. Where, after confirmation of sale, the owner pays to the broker the commissions agreed on, and afterwards discovers that the title to the land he has received in exchange is defec- tive, and the representations made as to the situation and value are false. Held, before he can recover from such broker the commissions so paid for the exchange, he must further show that the broker acted in bad faith, and concealed from him information possessed by said broker in regard to the title, situation and value of the land. Lockwood v. Halsey, 41 Kan. 166, 21 P. 98; Volker v. Fisk (N. J. Ch. '09), 72 A. 1011. See also Sec. 323. Sec. 383. Receipt by broker, signed by himself as agent, binds him individually. Where brokers, making a sale, give the vendee a receipt for the first payment, signed by themselves as agents, in which it is stated, "it is agreed that in case the title appears to be not good, this $1,000 will be refunded by us," they are personally liable to the vendee, in case of failure of title, even though the contract of sale by the vendor contains a similar provision. Mead v. Altgeld, 136 111. 298, 26 N. E. 388; Reed v. Riddle, 48 N. J. Ch. 359, 7 A. 487; Smith v. H. E. Orr Co., 147 P. 1, 84 Wash. 561. See also Sees. 76a, 168. 332 AMERICAN LAW REAL ESTATE AGENCY. Sec. 384. Where agent gives receipt in name of principal, purchaser must look to latter. Where an agent receipts for money in the name of his prin- cipal, the purchaser must look to the latter to account for it, and can not recover from the agent, whether the latter has delivered it to his principal or not. McCubbin v. Graham, 4 Kan. 340; Bamford v. Shuttleworth, 11 Ad. & El. (Eng.), 926; Hancock v. Gomery, 58 Barb. (N. Y.), 490; Colvin v. Holbrook, 2 N. Y. 126; Costigan v. Newland, 12 Barb. (N. Y.), 1456. See Sees. 385, 642b. Sec. 385. Recepit in name of principal, purchaser may recall before money is paid to hi If a party who has paid money to an agent for the use of his principal becomes entitled to recall it, he may, upon notice to the agent, recall it, provided the agent has not paid it over to his principal. Bamford v. Shuttleworlh, 11 Ad. & El. (Eng.), 926; Saddle v. Evans, 4 Burr, 1984; 1 Pars. Con. 79; Story on Ag., Sec. 300. Compare Sees. 642b, 384. Sec. 385a. Receipt of broker for purchase money bound owner. Where real estate brokers conducted negotiations between plain- tiffs and defendant for a sale of land, receipt by them of the purchase money from defendant was in legal effect a receipt thereof by plaintiffs. Wilson v. White, 119 P. 895, 161 Cal. 453. Sec. 386. Creditor authorized to collect rent can not pay there- from his own debt. A. authorized B. to collect certain rents, and directed him to apply them, (1) to the payment of certain demands due to third. persons, and then to the payment of a mortgage held by B. B. collected the rents, which did not amount to enough to pay the preferred demands, and appropriated them all to his own claim. In an action by A. for the money, Held, that B. could not set off his own demand. Tagg v. Bowman, 108 Pa. St. 273. See references under Sec. 307. PRINCIPAL AND AGENT. 333 Sec. 387. Agent to collect rent must apply the same as di- rected by principal. Where defendant, after he had been, by an instrument in writing, authorized by the owner of land to collect rents and make certain disposition thereof, accepted an order by such owner directing him to pay a specific portion of the accrued rents to the payee therein, this was a modification of the orig- inal agreement and binding upon defendant, though he might otherwise have been entitled to apply such rent to the satisfac- tion of claims held by him. Gray v. Barge, 50 N. W. 1014, 47 Minn. 498. Sec. 388. Broker acting in the interest of others, not entitled to share in transaction negotiated for principal. An agreement that a land agent shall have an interest in transactions negotiated by him, does not entitle him to share in a transaction in which he acted for other persons from whom he received compensation for effecting the sale. Home v. In- graham, 125 111. 198, 16 N. E. 868. See also Sees. 290, 314. Sec. 389. Broker purchasing property not entitled to commis- sions for its sale. An agreement by a real estate agent to divide commissions on the sale of certain property if plaintiff should find a purchaser does not entitle plaintiff to a share of the commission, where he and a third person purchased the property. Morganstern v. Hill, 28 N. Y. S. 704, 8 Misc. 356; Hess v. Gallagher, 117 N. Y. S. 960. See also Sec. 290. Compare Sec. 40. Sec. 389a. Agent can not become the buyer of the principal's property, even when sold at particular price. An agent can not become the buyer of the principal's property, even when there is a sale at a particular price. RucTcman v. Burgholz, 37 K J. L. 437; Armstrong v. Elliott, 29 Mich. 485. Compare Sees. 40, 290. Welling v. Poulsen (Mich. Sup. '10), 125 N. W. 373; Single v. Russell, 80 A. 164, 114 Md. 418; Sawyer v. Issenbuh, 141 N. W. 378, 31 S. D. 502. 334 AMERICAN LAW REAL ESTATE AGENCY. Sec. 389b. When employed to purchase, agent can not sell his own property to principal. When employed to purchase an agent can not sell his own property to his principal. Deep River, etc., v. Fox, 4 Ired. (N. C.) Eq. 61; Banks v. Judah, 8 Conn. 145; Matthews v. Light, 32 Me. 305; Copeland v. M. Ins. Co., 6 Pick. (Mass.) 198; Moore v. Mandlebaum, 8 Mich. 433; Moore v. Moore, 5 N. Y. 256; Sturdevant v. Pike, 1 Ind. 277; Segar v. Edwards, 11 Leigh (Va.) 213; Shannon v. Marmaduke, 14 Tex. 217; Cumberland, etc., Co. v. Sherman, 30 Barb. (N. Y.) 553. Sec. 389c. Circumstances under which agent had a right to purchase the property for himself. Defendant was employed to effect a purchase of real estate at a price not to exceed $51,000, and to take a contract there- for in his own name, to be assigned to plaintiff. Held, that after using all reasonable efforts to obtain said property for plaintiff at the limited sum, without success, he had a right to purchase the same for himself at the sum of $52,000, the con- tract of employment fixing the law of the case, without regard to the fiduciary relations of the parties. Pearsall v. Hirch, 14 N. Y. S. 305; Clark v. Delano (Mass. Sup. '10), 91 N. E. 299. See also Sec. 40. Sec. 390. Broker employing liable for fraud of sub-agent. A broker is liable for the fraud of a sub-agent employed by him, and not in privity with the broker's principal. Barnard v. Coffin, 141 Mass. 37, C N. E. 364; Estes v. Crosby, 175 N. W. 933, amend, of man. den., 177 1ST. W. 512, Wis. Sup. . See also Sec. 25. Sec. 390a. Sub-agent acting in good faith not liable for mis- take of his principal. Where a sub-agent had reasonable grounds to understand that the price given him by the principal agent was the owner's price, and concealed no material fact within his knowledge from the purchasers, he incurred no liability by reason of his representa- tion that this was the owner's lowest price, as an agent, acting in PBINCIPAL AND AGENT. 335 good faith and with reasonable care, is not liable for a mistake of his principal. Estes v. Crosby, 176 N. W. 933, amend, of man. den., 177 N". W. 512, Wis. Sup. . Sec. 391. Sub-agent concealing fact from principal deprived broker of right to commission. Where a sub-agent conceals from the principal the fact that he is acting for the agent, the latter can not recover a com- mission. Mullen v. Bower, 22 Ind. App. 294, 53 N. E. 790. See also Sees. 25, 291. Sec. 392. Sub-agent exceeding authority can not bind the principal for commissions. An agent to receive bids for property, who has no authority to consummate a sale, can not appoint a sub-agent so as to bind the principal for commissions on a sale made to a pur- chaser found by such sub-agent. Jones v. Brand, 106 Ky. 410 r 20 Ky. L. R. 1997, 50 S. W. 679. See also Sees. 381, 395. Sec. 392a. Broker selling on terms varying from instructions. Where a broker was employed to sell property to certain persons on a payment down of $17,500, he could not bind his principal by accepting a part payment of $10 only, and hence was not entitled to the commissions. Stoutenburg v. Evans (Iowa Sup. '09), 120 N. W. 59. See references under Sec. 307. Sec. 392t>. Broker departing from instructions in making sale. A broker employed to find a purchaser who would pay the purchase price, and in addition assume such assessments as might be levied against the property, did not comply with the terms given him so as to be entitled to the commission, where, in his agreement with the proposed purchaser, it was provided that the purchaser might assume the assessments, and if he did deduct them from the price. Kane v. Dawson, 52 Wash. 411, 100 P. 837. See references under Sec. 307. Sec. 393. Principal not liable to compensate sub-agent em- ployed by broker. Ordinarily the principal is not liable to compensate a sub- agent employed by the broker to sell the property, although 336 AMERICAN LAW REAL ESTATE AGENCY. authorized to take any steps necessary. Carroll v. Tucker, 21 N. Y. S. 952, 2 Misc. 397; Mason v. Clifton, 3 F. & F. (Eng.) 899; J. B. Watkins Ld. Mtge. Co. v. Thetford (Tex. Civ. App. '06), 96 S. W. 72; Benham v. Ferris (Mich. Sup. '10), 124 N. W. 538; Sterling v. De Laune (Tex. Civ. App. '07), 105 S. "W. 1169. See also Sec. 25. Unless he has ratified the ap- pointment of the sub-agent. Warren Com., etc., Co. v. R. E. Co., 120 Mo. App. 432, 96 S. W. 1038. Sec. 394. Broker not liable for poor sale by sub-agent. If an owner of land employs a broker to sell it, and the broker employs an agent in the place where the land is, and the broker honestly believes an offer made by the agent to be a good one, and so states to the owner, who accepts the offer in reliance on what is told him, the broker is not liable if the offer turns out to have been a poor one, he having used rea- sonable care in the matter. Barnard v. Coffin, 138 Mass. 37. Sec. 394a. When agent without implied power to appoint sub-agent. The power of a real estate broker to give an option for a lim- ited time, and to extend such time, is in the nature of a personal trust, so as to negative any implied power to appoint a sub-agent for whose services the principal will be liable. Sorenson v. Smith, 129 P. 737, 65 Or. 78, 51 L. R. A. (N. S.), 612, Ann. Cas. 1915 A, 1127; judg. aff. on re., 131 P. 1022, 65 Or. 78. CHAPTER VIII. SECTION. 395. Sub-agent violating instruc- tion. 396. Sub-agent entitled to share of one-half commissions. 396a. Sub-agent confined to share stipulated, and not entitled to share of extra commis- sion to chief. 397. Agreement with sub-agent to divide fees binding on pro- ducing customer. 397a. Sub-agent entitled to half commission growing out of combined option and sale. 397b. Sub-agent employed to as- sist entitled to recover re- gardless of value of service rendered. 398. One employing agent liable for commissions. 399. Secretly learning price and sending buyer, broker does not earn commission. 399a. Broker entitled to commis- sion on sale by owner to his customer. 400. Secretly representing both parties bars commissions. 401. Vendor acts in bad faith by giving commissions to pur- chaser's agent. 402. Broker required to exercise the skill of calling. 403. Broker may be responsible for sufficiency of security. SECTION. 403a. Contract held to guaranty payment of $5,000 for land sold at public sale. 404. Broker must account to prin- cipal for money received Statute of frauds no pro- tection. 404a. Broker required to account for proceeds of land sold by him in trust to pay debts of owner. 405. Broker for seller, member of purchasing syndicate, bars commissions. 406. Broker giving names of syn- dicate before formed Owner selling to others bars commissions. 407. Tenants in common jointly liable for commissions. 407a. Three brothers employing agent to sell realty for family personally liable on contract. 408. Broker selling lower than authorized bars commis- sions. 409. Terms of authorization can not be varied. 409a. Owner not bound to accept customer from broker at less price than stipulated. 410. Half cash complied with by sale for all cash. 337 338 AMERICAN LAW REAL ESTATE AGENCY. SECTION. SECTION. 410a. Broker authorized to sell for realty can not be modified half cash and remainder on orally. time can not sell for all 412. Failing to disclose best terms cash. bars commissions. ' 411. Contract modified, rights de- 412a. Broker understating price pend on new. obtainable liable to princi- 41 la. Written authority to sell pal for loss. Sec. 395. Sub-agent violating instructions in obtaining offer in advance of bids. One who has been employed by the agent to assist him in ob- taining bids for property, was not acting under that authority when he advised others to make the principal an offer in advance of the bid obtained by the agent which was about to be accepted by the principal. Jones v. Brand, 106 Ky. 410, 20 Ky. L. E. 1997, 50 S. W. 679. See Sees. 381, 392. Sec. 396. Sub-agent ordinarily entitled to share of one-half the commissions. Where, in an action for a division of broker's commissions, de- fendant agreed to pay one-half of the commissions earned on the sale, and defendant admitted receiving $287.50, it was proper for the court to assess plaintiff's damages at one-half of such sum. McCleary v. Willis, 36 Wash. 676, 77 P. 1073; Bray v. Riggs, 110 Mo. App. 630, 85 S. W. 116. Sec. 396a. Sub-agent confined to share stipulated, and not en- titled to share of extra commission to chief. Where owner of property agreed to pay plaintiffs 5% commis- sion for a sale, and they engaged defendants to assist them, agree- ing to give them % of such commission, they are not entitled to share any further commission which owner agreed to give plain- tiffs. Smith v. GoldsborougJi, 167 N. Y. Sup. 297, 179 App. Div. 769. Sec. 397. Agreement with sub-agent to divide fees binding on producing purchaser. Where plaintiff was authorized by the owner of land to sell it, and agreed to share the commission with defendant in case PRINCIPAL AND AGENT. 339 the latter found a purchaser, the contract was unilateral, binding on neither party until defendant found a purchaser. Wefel v. Stillman, 151 Ala. 249, 44 S. 203; Casey v. Richards, 101 P. 36 (Cal. App. '09); Painter v. Lamb, 65 Pa. Super Ct. 13; Pry or v. Scott, 200 S. W. 909, Tex. Civ. App. ; Steinbroolc v. Wil- son, 190 P. 606, -- Kan. Sup. ; Winslow v. Day, 183 N. Y. Sup. 2; Piper v. Allen, 219 S. W. 98, -- Mo. App. ; John v. Thrower, 75 S. E. 819, 11 Ga. App. 494. See also Sec. 20. Sec. 397a. Sub-agent entitled to half commission growing out of combined option and sale. There was a consummation of a sale to a customer of plaintiff, a real estate agent, so as to entitle him to half the commission under an agreement with defendant, another real estate agent, though only an option was given such customer, and then a resale was made directly from the first vendor to the second vendee, and division of the price paid by the second vendee made on the basis of the two sales. C off man v. Dyas Realty Co., 159 S. W. 842, 176 Mo. App. 692. Sec. 397b. Sub-agent employed to assist entitled to recover regardless of value of service rendered. In an action against brokers to recover for services rendered in assisting them in making a sale, plaintiffs right to recover did not depend on whether he was the procuring cause, but whether he did assist, and whether his services were of any value, provided there was a contract for such services, either express or implied. Piper v. Allen, 219 S. W. 98, Mo. App. . Sec. 398. One employing an agent to find a purchaser liable for commissions. One who employed a broker to find a purchaser for real estate, and who did not disclose to the broker that he was acting as an agent, and did not disclose his principal until after the broker had found a purchaser, was liable to the broker for commissions. TaubenUatt v. GalewsJci, 108 K Y. S. 588. See also Sec. 222. Where an owner's broker employed plaintiff to sell the real estate, agreeing to pay one-half of the commission in case of a 340 AMERICAN LAW REAL ESTATE AGENCY. sale on the terms specified, and the owner thereafter ratified such employment, plaintiff was entitled to recover commissions against the owner, and was not limited to its action against the broker. Warren Com. & Inv. Co. v. Leon L. Hull R. E. Co., 96 S. W. 1038, 120 Mo. App. 432. Sec. 399. Secretly learning price of property and sending buyer, broker not entitled to commissions. Where owners of real estate expressly refused to employ the plaintiff, a broker, in selling their property, it was held that the mere fact that the plaintiff, having ascertained the price charged for the property, sent a purchaser, to whom a sale was effected, did not entitle the plaintiff to recover commissions. Pierce v. Thomas, 4 E. D. Smith, 354. See also Sec. 443. Sec. 399a. Broker entitled to commission on sale by owner to his customer stopping broker from completing. Broker entitled to commission for sale made by owner after holding up negotiations begun by the broker. Hutto v. Stough & Hornsby, 47 S. 1031, 157 Ala. 566; Alexander v. Smith, 61 S. 68, 180 Ala. 541. Sec. 400. Secretly representing both parties defeats broker's right to commissions. A real estate agent who secretly undertakes to represent both parties, is not permitted to recover commissions from either. Williams v. Moore-Gaunt Co., 3 Ga. App. 756, 60 S. E. 372; Hess v. Gallagher, 117 K Y. S. 960; John v. Thrower, 75 S. E. 819, 11 Ga. App. 494; Welch v. Garrett Biblical Ins., 186 111. App. 191; Wheeler v. Lawler, 110 N. E. 273, 222 Mass. 210; Cohn v. Cohen, 157 N. Y. Sup. 125; Crawford v. Surety Inv. Co., 139 P. 481, 91 Kan. 748; Maddux v. St. Louis Union Trust Co., 171 S. W. 669, 186 Mo. App. 138. See also Sec. 314. Sec. 401. Giving commissions to purchaser's agent vendor acts in bad faith, but contract not void. The act of the vendor in giving secret commissions to the vendee's agent, although contrary to good faith and the policy PRINCIPAL AND AGENT. 341 of the law, does not make the contract of sale absolutely void. Lightcap v. Nicola, 34 Pa. Super. Ct. 189. Compare Grant v. Gold Ex. Syn., 12 B. (Eng.) 233, 69 L. J. 2 B. 150. See also Sec. 40. Sec. 402. Broker required to exercise such skill as is employed by persons in his calling. A broker is required to use such skill as is ordinarily po- sessed and employed by persons of common capacity engaged in the same trade or business, and such diligence as persons of common prudence are accustomed to use about their own business affairs. Bronnenburg v. Rinker, 2 Ind. App. 391, 28 N. E. 568; Shepherd v. Field, 70 111. 438; McFarland v. McClus, 1 Pa. Cases, 504, 5 Atl. 50; Mechem on Ag., Sec. 494. Sec. 403. Broker may be responsible for the sufficiency of the security. Where a vendor relies on his broker in the sale of property, he must exercise reasonable care in passing on the sufficiency of the security taken for the price, if he has accepted that re- sponsibility. Harlow v. Bartlett, 170 Mass. 584, 49 N. E. 1014. Sec. 403a. Contract held to guaranty payment of $8,000 for land sold at public sale. Provision in a contract by which defendant was to sell land for plaintiff at public sale; held, a guaranty that defendant would pay plaintiff $8,000 in cash on the day of sale. Barkley v. Atl. Coast Realty Co., 87 S. E. 219, N. C. Sup. . Sec. 404. Broker must account to principal for money re- ceived and withheld, and statute of frauds no protection. Although an appointment in writing is necessary to constitute one an agent for the sale of real estate, one who sells real estate as the owner's agent would not be justified in retaining the dif- ference between' the amount that he represented to his principal he received for the property and the amount he actually received, because his appointment was not in writing. Merriman v. Thompson, 48 Wash. 500, 93 P. 1075. See also Sec. 456. 342 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 404a. Broker required to account for proceeds of land sold by him in trust to pay debts of owner. Where an owner conveyed land to brokers upon a contract that they should sell it, and out of the proceeds pay his debts, and turn over the balance, after deducting their compensation, such brokers, upon sale of the land, can not refuse to account to the owner because a note given by such owner, secured by a mort- gage on the land conveyed and other land, is still outstanding. Morrison v. Neely, 214 S. W. 586, Tex. Civ. App. . Sec. 405. Broker for seller, member of purchasing syndicate, bars commissions. The fact that, unknown to the principal, a member of a firm employed to sell land belongs to the syndicate to which the land was sold, bars the first from recovering commissions for the sale, though the price received by the principal was fair and all that he demanded. Hammond v. Bookwalter, 12 Ind. App. 177, 39 N. E. 872. See also Sec. 559. Sec. 406. Broker giving names of syndicate to owners, and be- fore formed latter sells to others, broker barred commis- sions. In an action by a real estate broker to recover commissions it appeared that he furnished the names of the members of a purchasing syndicate to the owner, but the syndicate was not fully formed, and all the purchasers were not then known, and it did not appear what proportion of the price each was to pay, and the owner sold to others before the syndicate was fully formed. Held, that the broker could not recover commis- sions, as he did not produce a person ready and willing to purchase. Gerding v. Haskin, 141 N. Y. 514, 36 N. E. 601. Sec. 407. Tenants in common jointly liable for broker's com- missions. Where land is owned by two tenants in common, and is placed in the hands of one, who sells it through a broker, the owners are jointly liable for the broker's commissions. Clif- ford v. Meyer, 6 Ind. App. 633, 34 N. E. 23; Schomberg v. PRINCIPAL AND AGENT. 343 Auxier, 101 Ky. 292, 19 Ky. L. E. 548, 40 S. W. 911 ; Eeithly v. Ward, 217 S. W. 428, Tex. Civ. App. . Sec. 407a. Three brothers employing agent to sell realty for family personally liable on contract. Where three brothers assumed to act for themselves and other brothers and sisters in employing an agent to sell farm belonging to them, the three were personally liable for the whole commis- sion if the others did not know of or assent to contract of em- ployment. Roberts v. Goodlad, 166 K W. 646, 167 Wis. 318. Sec. 408. Broker effecting sale on lower terms than autho- rized loses commissions. A broker must follow the instructions of his employer; there- fore, one who is promised compensation if he will procure a pur- chaser for property on certain terms can not claim compensation for effecting a sale on lower terms, he having, moreover, acted in part in the buyer's interest. Williams v. McGraw, 52 Mich. 480, 18 K W. 227; McDonald v. Cabiness, 100 Tex. 615, 98 S. W. 943, 102 S. W. 720; Yarn v. Pelott, 55 Fla. 357, 45 S. 1015; Ryan v. Page, 111 N. W. 405, 134 Iowa, 60. See also Sees. 141, 422, 898. Sec. 409. Terms of authorization can not be varied by the broker. A letter authorizing agents to sell land for $2,200, provided that the party could pay $700 down, and the balance in one, two and three years, does not authorize them to sell for $1,000 down and the balance in one and two years. Speer v. Craig, 16 Colo. 478, 27 P. 891; Bunks v. Pierce, 33 Colo. 440, 80 P. 1036; Rake v. Townsend (Iowa Sup. '05), 102 N. W. 499; Crosthwaite v. Lebus, 146 Ala. 525, 41 S. 853; Engle v. John- son, 34 Ind. App. 593, 73 N. E. 772 ; Spengler v. Sonnenberg, 88 0. S. 192; Wiggins v. Est. of Chas. E. Coddingion, 145 N". Y. Sup. 3, 83 Misc. Rep. 439; Pehl v. Fanton, 119 P. 400, 17 Cal. App. 247; Parker v. Stubbs, 76 S. E. 571, 139 Ga. 46; Gore v. Griffith Realty Co., 169 S. W. 685, 160 Ky. 241; Dahlgard v. Florida Dev. Cor., 187 111. App. 282; McFarland v. Howell, 143 N. W. 860, 162 Iowa, 140; Compton v. Echols, 120 P. 637, 31 Okl. 151 ; Turner v. Baker, 74 A. 172, 225 Pa. 359 ; Cavanaugh 344 AMEEICAN LAW KEAL ESTATE AGENCY. v. Conway, 90 A. 1080, 36 E. I. 571 ; Caldwell v. Scott Bros., 143 S. W. 1192, Tex. Civ. App. ; Prichard v. Foster, 170 S. W. 1077, -- Tex. Civ. App. ; Little v. Gorman, 114 P. 321, 39 Utah, 63; Reitz v. Bryant, 127 P. 583, 71 Wash. 53; Noyes v. Caldwell 104 N. E. 495, 216 Mass. 525; Nash v. Childers, 160 S. W. 485, 155 Ky. 772 ; Gillespie v. Rosenbaum, 173 N. Y. Sup. 429; Alexander v. Anderson, 207 S. W. 205, -- Tex. Civ. App. ; Nichols & Jackson v. Carson, 220 S. W. 297, Tex. Civ. App. . See also Sec. 213. Sec. 409a. Owner not bound to accept customer from broker at less price than stipulated. Defendant owner was not bound to accept from plaintiff bro- ber a customer at a price less than that stipulated, although he was at liberty to accept a less price from another customer. Mul- len v. Crawford, 166 N. W. 694, Iowa Sup. . Sec. 410. Terms of half cash complied with by sale for all cash on delivery of deed. Where a contract authorizes an agent to sell land for "$15,000, about one-half cash," but is silent as to a sale for any larger sum, or as to receiving more than one-half cash, or as to the form in which that part of the price which is not cash should be put, a sale for $15,000 cash on delivery of the deed is in accordance with the contract. Witherell v. Murphy, 147 Mass. 417, 18 K. E. 215; Pope v. Peeples, 121 S. E. 303, Ga. App. . Compare Sec. 410a. Sec. 410a. Broker authorized to sell for half cash and re- mainder on time can not sell for all cash. A broker employed to sell land for one-half cash and balance on credit, can not recover a commission on the owner refusing to consummate a sale for all cash, unless the credit required to be extended was so short as to make it in effect a cash payment. Taylor v. Read (Tex. Civ. App. '08), 113 S. W. 191. Compare Sec. 410. See references under Sec. 307. PKINCIPAL AND AGENT. 345 Sec. 411. Where the contract of employment is modified, bro- ker's rights depend upon the new. The terms of a contract of employment may be modified by a subsequent agreement, express or implied, the same as any other contract, in which case the broker's right to compensa- tion depends upon the modified terms. Cornell v. Hanna (Kan. App. '98), 53 P. 790; Deford v. Shepard, 6 Kan. App. 428, 49 P. 795; May v. Schuyler, 43 K Y. Super. Ct. 95; Martin v. Crumb, 111 N. E. 62, 216 N. Y. 500, rev. judg., 142 N. Y. Sup. 1096, 158 App. Div. 228, app. to Ct. App. and re. den., 143 N. Y. Sup. 1130, 158 App. Div. 939; Hamilton v. Hathaway, 133 S. W. 629, 152 Mo. App. 483; Schano v. Storch, 137 N. Y. Sup. 26, 56 Misc. Rep. 484; Webb v. Harding, 211 S. W. 927, aff. judg., 159 S. W. 1129, Tex. Civ. App. ; Greene v. Minn. Billiard Co., 176 N". W. 239, Wis. Sup. ; Thornburg v. Haun, 190 P. 1083, Okl. Sup. ; Chandler v. Gaines-Ferguson Realty (7o., 224 S. W. 484, Ark. Sup. ; Fisher v. Slcidmore Land Co., 179 N. W. 152, Iowa Sup. . Sec. 411a. Written authority to sell realty can not be modi- fied orally. Where, after written authorization to brokers to negotiate an exchange of specific property was withdrawn, the brokers were orally requested to negotiate an exchange of a part of the prop- erty on different terms; held, that their services were not per- formed pursuant to a contract or memorandum in writing, as required by Civil Code, Sec. 1624. Fogg v. Me Adam, 144 P. 296, 25 Cal. App. 522. Under Ann. Code, Sec. 1624, where a written authorization to brokers is for an exchange of specific property, and not a gen- eral authorization to sell, it can not be modified orally. Id. Wellmyer v. Crawford, 89 N". E. 892, 48 Ind. App. 173, re. den., 93 N. E. 1051, 48 Ind. App. 173. 346 AMERICAN LAW HEAL ESTATE AGENCY. Sec. 412. Broker failing to disclose to the principal the best terms loses right to commissions. A broker employed to buy or sell property is not entitled to compensation where he fails to act in good faith and disclose to his principal the best terms upon which the transaction can be consummated. Henderson v. Vincent, 84 Ala. 99, 4 S. 180; Morey v. Laird, 108 Iowa, 670, 77 N. W. 835; Carpenter v. Fisher, 175 Mass. 9, 55 N. E. 479; Martin v. Bliss, 10 N. Y. S. 886, 57 Hun, 157; Ballmger v. Wilson (N. J. Ch. '02), 53 A. 488. See also Sec. 412a. Sec. 412a. Broker understating price obtainable liable to principal for loss. If the broker employed to sell or exchange property under- states to the principal the best price or arrangement obtain- able, the principal is entitled to recover from him the differ- ence between that obtained and that which might have been obtained. Holmes v. Caihcart, 88 Minn. 213, 92 N. W. 956, 60 L. R. A. 734; Baldwin v. Lewis H. May Co., Ill N. Y. Sup. 121. See also Sees. 290, 412. CHAPTER IX. SECTION. 413. Unless clothed with power by owner no one can trans- fer title to another's land. 414. Fraudulent acts of broker may give rise to an action of tort. 414a. Proceedings to enforce one remedy barred any other. 415. Unauthorized negotiations of broker not ratified by sale by owner to customer. 416. Broker accepting valuation made by buyer Principal bound thereby. 416a. Owner bound by legitimate effect of his language rather than his own understanding of its import. 417. In some States power to sell and convey land includes power to give covenants of warranty. 418. In others power to warrant specially conferred. 418a. Broker to sell land has no power to bind principal by contract to sell and convey. 419. Contract for sale of real es- tate may be sold without SECTION. authority conferred in writ- ing. 419a. Contract with broker to sell land not required to be in writing. 420. When duty of prnicipal to collect purchase money notes. 420a. Duty to collect purchase price devolves on seller. 420b. Vendors not required to ac- cept payments for land by checks. 421. Presumption after revocation that broker acts for pur- chaser. 42 la. One receiving inquiry from broker as to price of land may infer he is acting for another. 422. Authority to sell for fixed sum binding. 422a. Authority to sell for speci- fied sum is for cash only. 422b. Allegation in broker's peti- tion for finding a purchaser for land held to mean wholly or partly for cash. Sec. 413. Unless clothed with power by owner no one can transfer title to another's land. No one can transfer title to another's property, unless the owner has clothed him with authority, real or apparent, to do so. McOoldrick v. Willits, 52 N. Y. 612. 347 348 AMERICAN LAW REAL ESTATE AGENCY. Sec. 414. Fraudulent acts of broker may give rise to an ac- tion of tort. If a broker employed to sell property understates to his principal the price received by him and appropriates the differ- ence, must account to him therefor. Collins v. McClurg, 1 Colo. App. 348, 29 P. 299 ; Helberg v. Nickol, 149 111. App. 249, 37 N. E. 63; Cornwall v. Foord, 96 IU. App. 366; Bassett v. Rogers, 165 Mass. 377, 43 N. E. 180 ; Stearns v. Hockbrunn, 24 Wash. 206, 64 P. 165 ; Love v. Hass, 62 Ind. 255 ; Henshaw v. Wilson, 46 111. App. 364. And in addition, his fraudulent con- duct may subject him to an action for a breach of the con- tract. Barnard v. Coffin, 141 Mass. 27, 6 N. E. 364. Or to an action of tort. Emmons v. Alvord, 177 Mass. 466, 59 N. E. 126. See also Deceit, Sec. 298. Sec. 41 4a. Proceeding to enforce one remedy barred any other. In an action by some of the members of a syndicate which own an equitable interest in property, the legal title to which is held by another in trust for all the members, 'for the amount received by the holder of the legal title from a broker em- ployed by him to procure a purchaser of the property, as a part of the commission to be retained by the broker, on the ground of a fraudulent agreement between the holder of the legal title and the broker for a division of the commissions, bars an action against the broker for a rescission of the con- tract of employment and a reclamation of the commission re- tained by the broker. Hechscher v. Blinton (Va. Sup. '10), 66 S. E. 859. Sec. 415. Unauthorized negotiations of brokers not ratified by the 'sale by owner to customer. Defendants employed plaintiff to procure a purchaser for a ranch, and subsequently revoked the agency, and in the course of subsequent correspondence continually insisted that the ranch was not for sale, and that if defendants should sell the ranch they would not recognize any claim for commissions which plaintiff might make. Held, that the subsequent sale of the land by defendants to a purchaser with whom plaintiff had negotiated, was not a ratification of that unauthorized act so as to entitle plaintiff to commissions. Loving Co. v. Hes- perian Cattle Co., 176 Mo. 330, 75 S. W. 1095. See Sec. 24. PRINCIPAL AND AGENT. 349 Sec. 416. Broker accepting valuation made by buyer, prin- cipal bound thereby. Where an agent negotiating a sale of the interest in an es- tate accepts the valuation of the property made by the intend- ing purchaser, and fails to examine the county records, or take other steps to inform himself of the real value, as advised to do, he will be held to have acted on his own judgment, and no relief will be granted to his principal if it turns out that the lands are more valuable than they were represented to be. Herron v. Herron, 32 N. W. 407, 71 Iowa, 428. See also, Sec. 25. Sec. 416a. Owner bound by legitimate effect of his language rather than his own understanding of its import. Where the language used by the owner, in conference with the broker, and the attending circumstances, were such as to justify the broker in believing that an extension of time in which to make the sale was given, and he acted on such belief, the owner is bound by the legitimate effect of his language and acts, rather than by his own understanding of their im- port. Hancock v. Stacey (Tex. Sup. '10), 125 S. W. 884. Sec. 417. In some States power to sell and convey land in- cludes power to give covenants of warranty. In some jurisdictions the power to sell and convey land in- cludes authority to convey it with covenants of general war- ranty. Taggart v. Stanberry, 2 McLain (U. S.), 543; Peters v. Farnsworth, 15 Vt. 155; Venada v. Hopkins, 1 J. J. Marsh. (Ky.) 285, 293; Le Eoy v. Beard, 8 How. (U. S.) 451. See next section. See Sec. 43. Sec. 418. In some jurisdictions the power to sell with cove- nants of warranty must be specially conferred. A broker employed to sell real property has ordinarily no power to effect a sale with warranty, and if he does it is such a departure from his authority that the contract will not bind the principal. Tazel v. Palmer, 88 111. 597; Tudro v. Gush- man, 2 Wis. 279;' Nixon v. Hyserott, 5 Johns. Ch. (N. Y.) 58; 350 AMERICAN LAW EEAL ESTATE AGENCY. Coleman v. Garrigues, 18 Barb. (N. Y.), 60; Malone v. McCul- lougli, 15 Colo. 460, 24 P. 1040; Stengel v. Sargeant (N. J. Eq. '08), 68 A. 1106. See preceding Section. Compare Sec. 328k. Sec. 418a. Broker to sell land has no power to bind principal by contract to sell and convey. Where brokers were authorized to purchase and sell lands at a specified price, under certain conditions, or to find a purchaser, they had no power to bind their principal by a contract to sell and convey. Robertson v. Allen, 184 F. 372, 107 C. C. A. 254; La Plant v. Loveland, 170 N. W. 920, Minn. Sup. . Sec. 419. Broker may sell a contract for the sale of real estate without written authority. Penal Code, Sec. 640d, requiring written authority to authorize a broker to sell real estate for clients, does not apply to the employment of brokers to sell a contract for the sale of real es- tate at a higher price than that which the vendees had agreed to pay. Levy v. Trimble, 94 1ST. Y. S. 3, 47 Misc. 394. Sec. 419a. Contract with broker to sell land not required to be in writing. Where the authority given to a broker to effect a sale of land does not require the contract of sale to be in writing, the agree- ment to pay him a commission is not within the statute of frauds, and is valid, though not in writing. Low Moor Iron Co. of Va. v. Jackson, 84 S. E. 100, 117 Va. 76. Sec. 420. It is the duty of the principal to collect purchase money notes on which commissions depend. Brokers procured purchasers for a mine, who offered one- half cash and their unsecured notes for the balance ; these terms were unsatisfactory to the owner, but he agreed with the brokers to sell on these terms if they would wait for one-half of their commissions until the purchase money notes were col- lected. Held, that the owner owed the brokers the duty to make reasonable efforts to collect the notes as they matured, but the mere failure to bring suit on the notes was not a lack PRINCIPAL AND AGENT. 351 of diligence, in the absence of showing they were insolvent so that the notes could not be collected by suit. Glade v. Ford, 131 Mo. App. 164, 111 S. W. 135. Sec. 420a. Duty to collect purchase piice devolves on seller. Though a broker's contract of employment provided that he should not receive commissions unless the deal was closed, and that the commissions were payable from the proceeds of the sale, the broker, in the absence of a contract to that effect, was not required to see that the purchase price was paid be- fore he could receive commissions, as the duty to collect the price devolved on the seller, and not on the broker. Pinkerton v. Hudson (Ark. Sup. '08), 113 S. W. 35. Sec. 420b. Vendors not required to accept payments for land by checks. Vendors under contract with broker for the sale of land, terms "one-half down, and the balance in five equal annual pay- ments/' can not be required to accept payments by check, and they need not bind themselves to convey until this objection is removed by an offer at the time of a different method of pay- ment, reasonable in character and satisfactory to them. Califor- nia Land Security Co. v. Ritchie, 180 P. 625, Cal. App. . Sec. 421. Presumption by continuing negotiations after revo- cation that agent acts for purchaser. Where a broker is notified by a vendor that he will pay no commissions, and thereafter continues the negotiations for a sale, it is presumed that he is the agent of the purchaser and looks to him for his commissions. Wolverton v. Tuttle, 51 Ore. 501, 94 P. 961. Sec. 421a. One receiving an inquiry from a broker as to the price of land may infer he is acting as agent for another. Where defendant knew that plaintiff was a real estate broker, he could infer, upon receiving an inquiry from plaintiff as to the price of property, that the latter was acting as agent for another in seeking to purchase. Rodman v. Manning (Or. Sup. '09 ), 99 P. 657, 1135. 352 AMERICAN LAW HEAL ESTATE AGENCY. Sec. 422. Authority to sell for specific sum, did not authorize part cash and mortgage. A broker's authority to sell land for a specific sum, did not authorize an agreement to sell for a part of the price in cash, the balance to be represented by a mortgage on the premises. Stengel v. Sargeant (N. J. Ch. '08), 68 A. 1106. See also Sees. 141, 408. See references under Sec. 307. Sec. 422a. Authority to sell for specified sum is for cash only. A broker authorized to sell real estate for a specified sum, for a commission in excess of that sum, has authority to make a cash sale only. Slayback v. Wetzel (Mo. App. '09 ), 123 S. W. 982. See also Sec. 18. Sec. 422b. Allegation in broker's petition for finding a pur- chaser for land held to mean either wholly or partly for cash. The allegation of a petition in an action for commission for procuring a purchaser for real estate, that defendant agreed that if plaintiff could procure a purchaser he would pay him all over $6,000 for which the property sold, and that plaintiff found a purchaser at $6,800, would include a sale either wholly or partly for cash. McCormick v. Obanion, 153 S. W. 267, 168 Mo. App. 606. PART IV. COMMISSIONS AND COMPENSATION OF AGENTS. 353 CHAPTER I. SECTION. 423. Broker entitled to commis- sions on quantity. 423a. Broker entitled to agreed commissions and not lim- ited to computation on lesser sale price. 423b. Broker entitled to commis- sion on sale of lands other than those listed. 423c. Broker's right to commis- sions predicated on con- tractual relations with al- leged principal. 424. Broker interfering in an- other's transaction. 425. Broker agreeing to look to purchaser for commission. 425a. Broker employed to pur- chase not entitled to com- missions from seller. 426. Broker not entitled on sale at less than price. 426a. Owner selling land for less to broker's customer liable for commission. 427. Broker not entitled as con- tract not a lease. 427a. Acceptance by broker of change of sale contract to option held not to bind principal. 428. Immaterial variance in de- scription does not deprive. 428a. Wrong description insuffi- cient to defeat broker's commissions. SECTION. 428b. What circumstances fall short of a variance. 429. Broker procuring loan for less accepted entitled. 430. Broker to procure loan en- titled on finding lender. 431. Broker failing to report find- ing lender not entitled. 432. Where broker negotiated with two, sale to one bars. 433. Broker not entitled where sale void by statute. 433a. Contract of employment of broker void by law of state where made, void every- where; also, exceptions to application of statute of frauds. 433b. Statute recited making bro- ker's contract for sale of real estate void after one year. 43 3c. Contract of broker defective in trial court because sig- nature printed, excepted by appellate court as con- tract had been acted upon. 433d. Where contract void, notes collectable, the moral ob- ligation being sufficient consideration. 434. Principal refusing to ap- praise broker entitled. 435. Purchaser who knew length of lot refusing, bars. 355 356 AMERICAN LAW HEAL ESTATE AGENCY. SECTION. SECTION. 436. Where vendor repudiates 440. Broker entitled on sale by tender not necessary. owners to proportionate 437. Broker unsuccessful with F., commissions on share of sale by owner to F. and two tenants in common, others, bars commission. 440a, Broker entitled to commis- 438. Broker not entitled where sion on sale of land in pro- party does not show good portion as payments were faith. collected. 439. Unless exclusive broker not entitled on sale by another agent. Sec. 423. Broker entitled to commissions on quantity con- tracted for, although less owned. Where the terms of sale are fixed by the vendor, in accordance with which the broker introduced a proposed purchaser, and upon the procurement of the purchaser the vendor voluntarily reduces the price of the property, or the quantity, or otherwise changes the terms of sale as proposed to the broker, so that a sale is made, or terms or conditions are offered which the proposed buyer is ready and willing to accept, the broker will be entitled to his commissions at the rate specified in his agreement with his prin- cipal. Stewart v. Mather, 32 Wis. 344. Contra, Hoefling v. HamUeton, 84 Tex. 517, 19 S. W. 689. See Sec. 451. Sec. 423a. Broker entitled to agreed commissions and not limited to computation on lesser sale price. A promise to pay a broker for selling land a commission "on the price I may accept if sold through your agency," means a commission on the price agreed to be paid for the property, and not only on the amount actually paid. Condict v. Cowdrey, 5 N". Y. S. 187, 23 N. Y. St. 600, 57 N. Y. Super. Ct. 66. See pre- vious section. Sec. 423b. Broker entitled to commissions on sale of lands other than those listed. A letter closing correspondence whereby vendor authorized bro- kers to sell his lands, stating that commissions would be paid COMMISSION AND COMPENSATION OF AGENTS. 357 upon all lands listed in said letter, but stating that such was only a partial list of lands vendor had to offer, does not preclude re- covery of commissions for the sale of lands not listed therein. M. N. Clark & Co. v. Monson, 166 N. W. 576, Iowa Sup. . Sec. 423c. Broker's right to commissions predicated on con- tractual relations with alleged principal. A real estate broker's right to compensation must be predicated on contractual relations between himself and his alleged principal. Ludeman v. English, 189 P. 531. Sec. 424. Broker interfering in another's transaction not en- titled to commissions. A broker on being offered a commission to find a purchaser for certain lands, presented the matter to one who took it un- der advisement for a time, and then, wishing to signify his acceptance, sought the broker at his office, but not finding him, and learning that the owner was at the office of a rival broker went there, where the purchase was completed. Held, that the former was entitled to the commission. JenJcs v. Nobles, 42 111. App. 33. See also See. 444. Sec. 425. Broker agreeing to look to the purchaser for com- missions bound by his election. Plaintiff, a real estate broker, was employed by defendant to sell or exchange for him a farm and four lots, the farm at $5,000, or the whole at $13,000, and agreed to pay plaintiff commissions therefor at the rate of two and one-half per cent. ; a purchaser was introduced to defendant by plaintiff, and an exchange finally agreed on, at the valuation of $13,000; but the defendant insisted that the purchaser should pay the plain- tiff's commissions, and the purchaser called on plaintiff and told him that it had been agreed between defendant and him- self that he (the purchaser) was to pay plaintiff's commis- sions, and that the exchange had been made at a valuation of $5,000, whereupon plaintiff agreed to look to the purchaser 358 AMERICAN LAW REAL ESTATE AGENCY. for his commissions, and wrote a letter to defendant to that effect, whereupon the exchange was made. Held, that if the defendant acted on plaintiff's letter, and was guilty of no fraud, it would be immaterial what the purchaser said to plain- tiff, as, if the purchaser had deceived plaintiff, defendant was not responsible therefor. McClave v. Maynard, 35 How. Pr. (N. Y.) 313. See also Sec. 588. Sec. 425a. Broker employed to purchase not entitled to com- missions from seller. Plaintiff, a real estate broker, being employed by B., a per- son desirous of purchasing a residence, to find for him such a place as he desired, introduced him to defendant, who had a place to sell, and informed defendant that if B. purchased the property defendant would have to pay plaintiff the usual commission. Defendant had negotiations with B. in regard to a sale of the property, but failed to come to any agreement as to terms, and defendant then sold the property to his brother, who, eleven days thereafter, sold it to B. Held, that in the absence of any evidence to show that the sale by de- fendant to his brother, and the subsequent conveyance by him to B., was done to defraud plaintiff of his commissions, he could not recover them from defendant. It seems that plain- tiff, having been employed by B., any agreement made by plaintiff with defendant for commissions was void as a fraud upon B., in the absence of proof that B. was apprised of such agreement, and assented thereto. Bennett v. Kidder, 5 Daly (N. Y.) 512. Compare Sees. 313, 454. Sec. 426. Broker not entitled to commissions on contract at set price and sale at less. A broker hired to sell property at a certain price can not re- cover commissions for effecting a sale at a lower price, and the appellate court held that the case was properly taken from the jury. Williams v. McGraw, 52 Mich. 480, 18 N. W. 227; Brown v. Adams, (R. I. Sup. '08), 69 A. 601. See also Sec. 558. Sec. 426a. Owner selling land for less to broker's customer liable for commission. An owner of land who sold directly to a purchaser found by the broker at a price less than that at which it was listed is liable COMMISSION AND COMPENSATION OF AGENTS. 359 for the broker's commissions. Davis-Fisher Co, v. Hall, 148 N". W. 713, 182 Mich. 574, L. K. A. 1915 A, 1224; ScJilegal v. Ful- ler, 149 P. 1118, Okl. Sup. . Sec. 427. Broker not entitled to commissions, as contract se- cured was not a lease. Plaintiffs, real estate brokers, were employed by defendant to procure a lease of certain real estate owned by her; they negotiated an agreement for a lease, the terms of which she could not perform, nor could she enforce it against the other parties; and procured her to execute the same upon the assur- ance that it was effectual. Held, that an action was not main- tainable to recover commissions, that to earn the same they were required to procure a lease or a valid agreement for one. Crombie v. Waldo, 137 N. Y. 129, 32 N. E. 1042, 33 N. E. 744; Montgomery v. Knickerbocker, 50 N. Y. S. 128, 27 App. Div. 117; Ward v. Zborowski, 63 N. Y. S. 219, 31 Misc. 66; Armstrong v. O'Brien, 83 Tex. 635, 19 S. W. 268; Hale v. Kumler, 85 Fed. 161, 29 C. C. A. 67, rehearing denied 172 N. Y. 646 ; Laws & Bradford v. Schmidt, 80 0. S. 108, 88 N. E. 319. See also Sec. 812, and references under Sec. 307. The owner of real estate agreed with brokers that if they would make a lease of the property, in accordance with her proposition, she would pay the commission stipulated. The proposition was to lease perpetually, lessees to have the privi- lege of purchase at the end of twenty years, and required the lessees to erect a modern, first-class building, to secure the erection of which they were to deposit $20,000, and, in the event of failure the fund so deposited to go to the owner, but if the building should be completed, then to the lessees, and it was provided that the proposition should be binding on the payment of $1,000, to be credited on the first quarterly pay- ment of rent. Held, that the mere procurement by the bro- kers of a party who accepted the owner's proposition, but neither did, nor offered to do anything further, the owner not having herself defaulted in any respect, did not entitle the brokers to the commission. Laws v. Schmidt, 80 Ohio St. 108, 88 N. E. 319; Bradford v. Schmidt, 80 Ohio St. 108, 88 N. E. 319. 360 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 427a. Acceptance of change of sale contract to option by broker held not to bind principal. Where a broker authorized to sell land wrote his principal that he had a tentative contract on different terms requiring different payments, a reply accepting such change did not ratify broker's act in making an option instead of a sale contract. Hicks v. Christeson, 164 P. 395, Gal. Sup. . Sec. 428. Immaterial variance in description did not deprive broker of commissions. Where plaintiff made a contract by which he was to have the exclusive right for twenty days to effect a sale of defendant's farm, and the contract of purchase which he secured described the land as containing so many acres on which defendant resided, lying partly in one and partly in another town named, and bounded but on three sides, and concluded by stating that it was formerly known as the "Van Allen farm;" whereas it is desig- nated as the "Owen's place" in defendant's contract, the variance is immaterial, as the description is sufficient to enable the land to be located, and it is not void for uncertainty, and the broker is entitled to commissions. Schultz v. Griffin, 8 N. Y. S. E. 332, reversed 121 N. Y. 294, 24 N. E. 480; Gifford v. Straub, 179 N. W. 600, Wis. Sup. . See also Sees. 59, 428a. Sec. 428a. Wrong description insufficient to defeat broker's right to commissions. An owner of land listed it with a real estate broker to be sold within a given time, at a stated price, agreeing to pay the broker ten per cent, if he sold it, and five per cent, if the owner sold it, which he did within the specified time. It ap- peared that the number of the lot was by mutual mistake er- roneously stated in the contract, but the land was otherwise clearly described. Held, that the mere mistake as to the num- ber of the lot was insufficient to defeat a recovery by plaintiff. Tyler v. Justice, 120 Ga. 879, 48 S. E. 328. See also Sees. 59, 428. Sec. 428b. What circumstances fell short of a variance. Where, in an action by a broker for commissions, the com- plaint alleged that he was employed to procure a purchaser COMMISSION AND COMPENSATION OF AGENTS. 361 of real estate for a commission, on condition that plaintiff would at once advise the purchaser to give the seller a con- tract for the construction of a building on the premises, but that, unless the seller got such contract the plaintiff should receive nothing, and that the purchaser awarded to the owner such a contract, and the broker testified that the owner in- formed him that, if he induced the purchaser to award to the owner a contract to erect a building, a specified sum would be paid as commissions, otherwise no commission would be paid, the subsequent testimony of the broker that nothing was said as to his advising the purchaser to build, did not create a variance between the pleading and the proof, but, at most, only varied the terms of the contract relating to the same transaction, and the owner was not misled thereby. Geiger v. Riser (Colo. Sup. '10), 107 P. 267. Sec. 429. Broker securing loon for a less amount, which isi accepted, entitled to commissions. In an action upon an agreement to pay a broker a commission for obtaining a loan, it appeared that a loan for a less amount was obtained, and at first accepted, but subsequently declined by the principal as being insufficient for his purpose. Held, that the service had been rendered and the commission was due, in the absence of any usage among New York brokers to receive no com- pensation unless the matter was consummated. Van Lieu v. Byrnes, 1 Hilton (N. Y.), 133; Hutchings v. Binford, 236 S. W. 537, Tex. Civ. App. . See also Sec. 24. Sec. 430. Broker to procure a loan entitled to commissions on finding a lender. A broker employed to effect a loan is entitled to his commis- sions when he has found a lender who has the money and who approves of the security, unless his rights are varied by special contract; there is always an implied condition that the bor- rower will show a good title. Phister v. Gave, 48 Mo. App. 455; Calvin Philip & Co. v. Laylow (Wash. Sup. '09), 104 P. 610; Rockwell v. Hurst, 13 N. Y. S. 290; Budd v. Zoller, 52 Mo. 238; Steele v. Lippman, 115 N. Y. S. 1099; Steele v. Eumore, 117 N. Y. S. 189. 362 AMERICAN LAW REAL ESTATE AGENCY. Sec. 431. Broker failing to report finding lender not entitled to commissions. Where an application for a loan is made to a broker, who secures a party willing to make the loan, but does not so no- tify the applicant, and after the time has elapsed within which the broker was to place the loan, the applicant, without knowl- edge of the steps taken by the broker, secures a loan from the same person with whom the latter had arranged to place it, the broker is not entitled to commissions. Biddison v. John- son, 50 111. App. 173. See also Sees. 235, 312, 471. Sec. 432. Where broker negotiated with two jointly, sale by owner to one bars commissions. Plaintiff employed as a broker by defendant to sell certain real estate, but not having the exclusive right to sell, carried on negotiations with two persons for a purchase by them to- gether, but did not succeed in effecting a sale; afterward, one of such persons offered defendant the same price for which plaintiff was authorized to sell, which defendant accepted; it did not appear that plaintiff had had negotiations with such person for a separate purchase by him, or that such offer by him was the result of his negotiations with plaintiff. Held, that plaintiff could not recover commissions on the sale. Arm- strong v. Wann, 29 Minn. 126, 12 N. W. 345 ; Nadler v. Men- schel, 110 N. Y. S. 384. See also Sec. 437. Sec. 433. Broker not entitled to commissions where contract void by statute of frauds. A real estate broker is not entitled to commissions, where a sale to his customer is not consummated, and the executory contract of sale is not binding under the statute of frauds. Wilson v. Mason, 158 111. 304, 42 N. E. 134. See also Sec. 602. A real estate agent is not entitled to commissions on an in- valid sale. Vollcer v. Fisk (N. J. Eq. '09), 72 A. 1011) ; Voice r v. Fisk, 72 A. 1011, 75 N. J. Eq. 497; Pugli v. Solein, 180 P. 930, Or. Sup. ; Kuh v. LemeTce, 180 P. 889, -- Wash. Sup. -; Holland v. Johnson, 174 N. W. 874, N. D. Sup. ; Bryan v. Mayo, 124 N. E. 873, Ind. Sup. ; Pur Ay v. Law, 180 X. W. 251, Mich. Sup. . Compare Sec. 454. COMMISSION AND COMPENSATION OF AGENTS. 363 Sec. 433a. Contract of employment of broker void by law of state where made, void everywhere; also exceptions to application of statute of frauds. Where a real estate broker's employment contract is void in the state where made, because not signed by both parties, it is void everywhere, and no subsequent agreement or act based on it can give it validity. Osborne v. Dannatt, 149 N. W. 913, 167 Iowa, 615. An agreement that in case of sale to S, in accordance with contract of a certain date entered into between him and C, of 578 acres of land, located in a certain county, there would be due, etc., was, in effect, a promise to pay for past services, not con- trolled by Rem. Code 1915, Sec. 5289, excepting agreements au- thorizing brokers to sell realty, if in writing. Henneberg v. Cook, 175 P. 313, Wash. Sup. . Under Eev. Stat. 1913, Sec. 2628, providing that every contract of brokerage shall be void unless in writing, contracts not in writing are not "void," but merely "voidable" or unenforceable for want of evidence which the statute requires. Miles v. Lampe, 168 N. W. 640, -- Neb. Sup. . Sec. 433b. Statute recited making broker's contract for the sale of real estate void after one year. Laws 1911, c. 157, providing that contract making one an agent for the sale of real estate shall become void after one year, unless the time of termination is fixed, rendered a contract for the ex- clusive sale of lots, without limitation as to time, absolutely void after one year, though the owner was not aware of the invalidity until later. Odlin v. McAllister,, 90 A. 1086, 112 Me. 89. Sec. 433c. Contract of broker held defective by trial court because of printed signature excepted by appellate court as contract had been acted upon. Allegation of a broker's employment contract is not sufficient under Eev. Stat. 1913, Sec. 2628, because signature of the broker was printed; held error, where he had acted on the contract. Berryman v. Childs, 153 N. W. 486, 98 Neb. 450. 364 AMERICAN LAW REAL ESTATE AGENCY. Sec. 433d. Where contract void, notes collectible, the moral obligation being sufficient consideration. Though the oral promise to pay a commission for effecting an exchange of land was unenforceable, being within Comp. Laws 1915, Sec. 11981, a note given by the landowner for the amount of such commission is enforceable, as between the parties, the moral obligation being sufficient consideration. Bagaeff v. ProJco- piTe, 180 N. W. 427, Mich. Sup.' . Sec. 434. Principal capriciously refusing to appraise can not deprive broker of commissions. Where a broker is employed to negotiate for a house his compensation to be paid for in diamonds, no particular dia- monds being particularly identified, and the broker finds a house and the principals agree as to the price, the broker can not be deprived of his compensation by his employer's capri- cious refusal to agree to any mode of appraising the diamonds. West v. Lynch, 1 City Court R. (N. Y.) 225. See also Sec. 454. Sec. 435. Where purchaser refusing to take, knew the real length of lot, broker barred commissions. In an action by a real estate broker to recover commissions earned, on the ground that the purchaser refuses to take the property on account of false representations of the length of the lot, a verdict for defendant is clearly right, where it ap- pears that the purchaser knew the exact length of the lot be- fore he agreed to purchase it. Sloman v. Bodwell, 24 Neb. 790, 40 N. W. 321; Bruce v. Meserve, 117 N. E. 683, Mass. Sup. . See also Sees. 183, 451. A broker familiar with a lot was employed to procure a pur- chaser. The owner stated to the broker that the lot had a front- age of 168 feet on the street; a purchaser procured by the broker refused to complete the purchase because the frontage was only 165 feet. Held, that the broker was not entitled to commissions, since he was employed to procure a purchaser for the lot as it was, and the fact that the owner told the proposed purchaser during the negotiations that the frontage was 168 feet, did not affect the contract of brokerage. Eeough v. Meyer, 111 N. Y. S. 1,127 App. Div. 273. See also Sec. 451. COMMISSION AND COMPENSATION OF AGENTS. 365 Sec. 436. Where vendor signifies repudiation of contract ten- der not necessary for broker to recover commissions. Where a contract of sale has been revudiated by the vendor, proof of tender of performance by the vendee is not necessary, in an action by the broker against the vendor for his com- missions on the sale, when it is shown that it would not have been of any avail if made. Harwood v. Diemer, 41 Mo. App. 48; Smith v. Tatum, 79 S. E. 775, 140 Ga. 719; Rothbaum v. Solomon, 187 111. App. 338; Parker v. Seattle Land Co., 165 P. 1086, Wash. Sup. ; Merzoian v. Kludgian, 191 P. 673, Cal. Sup. . See also Sec. 625. Sec. 437. Where broker unsuccessfully negotiated with P, sale by owner to F and others bars commissions to broker. Where a broker's contract for the sale of land required not only the finding of a purchaser but a sale to him by the bro- ker, and it was specially agreed that no commission should be paid unless a sale was actually made by the broker, he could not recover commissions for a sale made to F. and others by the owner, because he had submitted the land to F. alone, who was unwilling to purchase on the terms fixed by the owner. Burch v. Hester & Lawhorn (Tex. Civ. App. '08), 109 S. W. 399; English v. Wm. George Realty Co. (Tex. Civ. App. '09), 117 S. W. 996. See also Sec. 432. Sec. 438. Broker not entitled to commissions where party to make exchange does not show good faith. A contract of exchange negotiated by a broker, incompletely executed by the broker's principals, does not show willingness to perform by the alleged purchaser, where the form of the contract and the whole of the signatures thereto show that some of the conditions upon which the purchaser insisted could not be complied with. Schulte v. Meehan, 133 111. App. 491. See also Sec. 195. Sec. 439. Unless broker has exclusive agency not entitled to commissions on sale by another agent. A broker who is unsuccessful in effecting a transaction in behalf of the principal is not entitled to commissions upon the success of another broker, unless the principal gives him 366 AMERICAN LAW HEAL ESTATE AGENCY. an exclusive agency or promises to pay him a commission even though another agent is successful. Long v. Herr, 10 Colo. 380, 15 P. 802; Gain v. Hess, 102 Iowa, 140, 71 N. W. 218; Letshaw v. Moore, 53 Kan. 234, 36 P. 342; Walton v. N. 0., etc., R. Co., 23 La. Ann. 398; Ward v. Fletcher, 124 Mass. 224; Danville v. Comstrock, 110 Mich. 693, 69 N. W. 79; Thuner v. Kanter, 102 Mich. 59, 60 N. W. 299; Emberson v. Deane, 46 How. Pr. 236; Owens v. Wehrle, 14 Pa. Super. Ct. 536 ; Powell v. Anderson, 15 Daly, 219, 4 N. Y. S. 706 ; Wilson v. Alexander (Tex. Sup. '92), 18 S. W. 1057; Hennings v. Parsons, 108 Va. 1, 61 S. E. 866. See also Sec. 445. Sec. 440. Broker entitled on sale by owners to proportionate commissions on share of two tenants in common. Where a broker had the exclusive control of property for the purpose of sale so far as two of the several tenants in common could confer it, and was attempting to sell when the owners sold, he can recover a commission on the two tenants' share of the purchase money. Goldsmith v. Case, 80 S. C. 341, 61 S. B. 555. Sec. 440a. Broker entitled to commission on sale of land in proportion as payments were collected. Where defendants agreed to pay plaintiffs as a commission for securing a contract for defendants, all above a specified price, the commission to be paid "in proportion as we receive the money," plaintiffs were not required to wait until defendants had received payment of the entire contract price, but were entitled to be paid their proportion of any money which the defendants received upon the contracts. Cooper v. Midland Metal Co., 56 Pa. Super. Ct. 485. CHAPTER II. SECTION. SECTION. 441. Broker preventing competi- 444. Interference by breaking tive bidding not entitled into negotiations started to commissions. by another agent. 442. Broker cannot charge com- 445. The first broker who sun- missions against bene- ceeds is entitled to the ficiary. commission. 443. Volunteers, 446. Broker who was the procur- ing cause of the sale is entitled to compensation. Sec. 441. Broker preventing competitive bidding not entitled to commissions. A broker employed by a guardian of an incompetent person to sell real estate is not entitled to commissions if he offered money to another bidder to induce him to refrain from bid- ding on the same against the purchaser procured by the bro- ker, and without the guardian's knowledge represented the purchaser, and worked to secure the real estate for him at the lowest possible price. Trees v. Millikin (Ind. App. '08), 85 N. E. 123. See also Sec. 217. Sec. 442. Broker can not charge commissions against benefi- ciary. Recovery of a real estate broker's commissions for procur- ing a purchaser can not be charged against one who merely had a beneficial interest in the property without authority to sell, and who, so far as she acted in negotiations resulting in the sale, referred the broker to others who alone could convey. Kirivan v. Pizer, 109 N. Y. S. 739. Sec. 443. Volunteers. A mere volunteer, though he brings the parties together and is the efficient means of procuring a sale, a lease, or an ex- 367 368 AMERICAN LAW BEAL ESTATE AGENCY. change of property, is not entitled to a commission. Albert Booth Cohn v. Lee, 117 N. Y. S. 550; Viley v. Pettit, 96 Ky. 576, 16 Ky. L. R. 650, 29 S. W. 438; Merrill v. Latham, 8 Colo. App. 263, 45 P. 524; Witherbee v. Walker, 42 Colo. 1, 93 P. 1118; Keener v. Harrod, 2 Md. 63; Fordtran v. Stower, 113 S. W. 631 (Tex. C. A. '08) ; Ballentine v. Mercer, 130 Mo. App. 605, 109 S. W. 1037; Sharp v. Hoopes (N. J. Sup. '06), 64 A. 989 ; McClosky v. Thompson, 56 N. Y. S. 1076, 26 Misc. 735; Tinkham v. Knox, 18 N. Y. S. 433; Henderson v. Sonne- baum, 30 Pa. Sup. Ct. 182; Samuel v. Luckenbach, 205 Pa. St. 428, 54 A. 1091. Contra, Kinder v. Pope, 106 Mo. App. 536, 80 S. W. 315. See also Sec. 466. No recovery can be had for services volunteered upon the chance of obtaining future employment. Such services are Here gratuities. Mechem on Ag. Sec. 600. In the absence of a special contract, finding a purchaser is not enough to entitle to a commission where no sale was made. Haase v. Schneider, 98 N. Y. S. 587, 112 App. Div. 336 ; Pierce v. Thomas, 4 E. D. Smith, 354; Harris v. Reynolds (N. D. Sup. '07), 114 N. "W. 369. Nor does receiving money as part pay- ment on a contract of sale of real estate, and giving the broker a receipt therefor, make him the recipient's agent. Appeal of Jacquett, 3 Walk. (Pa.), 13. See also Sec. 399. Though a mere volunteer can not recover for services rendered without a contract of employment, yet if the owner of property knows that the alleged volunteer is a broker, and is trying to ef- fect a sale, and expects compensation, and it appears that the owner encouraged the broker and led him to believe that he would be compensated, a contract will be implied, if a sale is consum- mated by the broker. Knott v. Lake Shore & M. S. Ry. Co., 172 111. App. 550. Where an owner did not ask the real estate agent's assistance in finding a purchaser for land, and refused his request to lease the land, a contract of employment could not be inferred from the owner's knowledge that the agent was about to take a cus- tomer and show the farm with a view of making an offer. Walsh & Griffen Co. v. Collenbaugh,, 130 N". W. 792, 150 Iowa, 692. Negotiations by a broker employed to procure a purchaser with agents of one who subsequently purchased the property are not COMMISSION AND COMPENSATION OF AGENTS. 369 equivalent to negotiations with the purchaser, where the agent had no authority to represent or act for the purchaser. Haase v. UHman, 131 N. Y. Sup. 1050, 148 App. Div. 40. Sec. 444. Interference by breaking into negotiations started by another agent. A broker interfering with another's transaction is not en- titled to a commission. Reynolds v. Tompkins, 23 W. Va. 229; Jenks v. Nobles, 42 111. App. 33. Where a broker to sell advertises the property and shows it to a person, and another broker buys the property and conveys it to that person, the first broker is entitled to recover commissions. Elemendorf v. Golden, 37 Wash. 664, 80 P. 264. Where a broker, through a letter improperly reaching him, obtains information and directs the seeker to the owner, he is not entitled to commissions on an exchange of properties af- terwards effected. Hamilton v. Gillander, 49 N. Y. S. 663, 26 App. Div. 156. Where a broker, through a mistake in telephoning the owner, telephoned another broker bearing the same name, who thereupon effected a sale, the latter was not entitled to commissions. Shapiro v. Shapiro, 103 N. Y. S. 305, 117 App. Div. 817. Where a broker was negotiating with a customer whom he introduced to the owner, and the latter told the customer he could buy cheaper through another agency, and a sale was effected through the latter, the former agent was entitled to the commission. Gilmore v. Freshaur, 126 Mo. App. 299, 102 S. W. 1107. A broker who fails to procure a purchaser on the terms pro- posed and another interferes and sells on different terms, or at the same price, is not entitled to commissions. Carlson v. Nathan, 43 111. App. 364; Arm.es v. Cameron, 19 D. C. 435; Mears v. Stone, 44 111. App. 444 ; Tinsley v. Scott, 69 111. App. 352; Livezy v. Miller, 61 Md. 336; Growningshield v. Foster, 169 Mass. 237, 47 N. E. 879 ; Wolff v. Rosenberg, 67 Mo. App. 403; Northcupp v. Diggs, 128 Mo. App. 217, 106 S. W. 1123; Chandler v. Button, 5 Daly (N. Y.), 112; Powell v. Anderson, 15 Daly, 219, 4 N. Y. S. 706; Holly v. Townsend, 2 Hilt. (N. Y.) 34; De Zavola v. Rozaliner, 84 N. Y. S. 969; Friedman v. Havemeyer, 56 N. Y. S. 97, 37 App. Div. 518; 370 AMERICAN LAW REAL ESTATE AGENCY. Felman v. O'Brien, 51 N. Y. S. 309, 23 Misc. 341; Powell v. Lamb, 1 N. Y. S. 431 ; Eae v. Kane, 106 N. Y. S. 47, 121 App. Div. 494; Land Mtge. Bk. v. Hargis (Texas Civ. App. '02), 70 S. W. 352. Where a broker put his principal into communication with a prospective purchaser, who proposed making a proposition, but later bought the property through another agent at a slightly reduced price, the first agent having set on foot in- quiries and negotiations that culminated in a sale, was en- titled to the commissions. Cunliff v. Hansmann, 97 Mo. App. 467, 71 S. W. 368; Shinn v. Evans, 37 App. D. C. 304. Com- pare Sec. 290. A broker is entitled to commissions where the principal inter- feres with the customer and concludes the transaction himself. William^ v. Bishop, 11 Colo. App. 378, 53 P. 239. A broker who finds a purchaser and negotiates with him to sell the land, and when the sale is nearly completed, another broker meets the customer, who tells him of the offer made by the first broker, and with full knowledge of the first broker's negotiations the second broker sells the property for a less sum to the customer, and the owner, ignorant of the first broker's negotiations, concludes the transaction, the owner is liable for commissions to the first broker. Reynolds v. Tompkins, 23 W. Va. 229 ; Lewis v. McDonald, 83 Neb. 694, 120 N. W. 207. See also Sec. 446. The principal can not interfere with negotiations started by the broker, revoke his authority, and sell the land to his cus- tomer, or through another broker, and escape liability for com- missions to the first broker, the customer not having abandoned the idea of purchasing. Day v. Porter, 161 111. 235, 43 N. E. .1073 ; Oillet v. Corum, 1 Kan. 156 ; Corning v. Calvert, 2 Hilt. (N. Y.) 56; Budd v. Z oiler, 52 Mo. 238; Newton v. Conness (Tex. Civ. App. '08), 106 S. W. 892. Sec. 445. The first broker who succeeds is entitled to the com- mission. "Where two or more brokers are employed, ordinarily the first who succeeds in actually producing a purchaser and con- summating a sale is entitled to full commissions. Whewell v. 371 McLernon Realty & Const. Co., 120 N. Y. S. 72; Daniels v. Columbia H. Land Co., 9 App. Gas. (D. C.), 483; O'Toole v. Dolan, 129 Cal. 471, 62 P. 30; Glenn v. Davidson, 37 Md. 365; McCan v. Bailey, 60 Mo. App. 456; Jennings v. Trummer, 52 Ore. 149; 96 P. 874; Glasscock v. Vanfleet, 100 Tenn. 603, 46 S. W. 449; Yarborough v. Creager (Tex. Civ. App. '03), 77 S. W. 645; Osier v. Moore, 8 Brit. Col. 115; Frinck v. Gil- bert (Wash. Sup. '09), 101 P. 1088; Eorton <& Co. v. Beall, 171 S. W. 894, 116 Ark. 273; Idelson v. Robinson, 150 P. 322, 27 Colo. App. 507; Thorpe v. Cameron-Schroth Co., 191 111. App. 455 ; Hieronymus v. Atterbury, 137 S. W. 617, 156 Mo. App. 612 ; Bellis v. Hann & Kendall, 157 S. W. 427, Tex. Civ. App. ; Hennings v. Parsons, 61 S. E. 866, 108 Va. 1, 15 Ann. Gas. 765; DalJce v. Sivyer, 105 P. 1031, 56 Wash. 462, 27 L. E. A. (X. S.), 195; Starts v. Springgate, 167 K W. 221, L. R. A. 1918 D, 728. Compare Sec. 454. Where several brokers attempted to secure a loan for defendant, who, in good faith, paid the broker who produced the party mak- ing the loan, defendant was not liable to others, and was not re- quired to make inquiry as to which broker was the procuring cause of effecting it. Brooks v. Geo. Q. Cannon Ass'n, 178 P. 589, Utah Sup. . In some jurisdictions the first broker who brings the parties together and induces the seller and the purchaser to enter into the contract, is entitled to the commission. Higgins v. Miller, 109 Ky. 209, 58 S. W. 580, 22 Ky. L. R. 702 ; Baler v. Thomas, 33 N. Y. S. 613, 12 Misc. 432; De Zavola v. Rozaliner, 84 N. Y. S. 969. Dalke v. Siryer (Wash. Sup. '09), 105 P. 1031. See Sec. 608. Where property is placed with several brokers, the first who procures a contract of sale and obtains part payment of the purchase money, is entitled to the commission. Eggleston v. Austin, 27 Kan. 245; Stewart v. Woodward, 7 Kan. App. 633, 53 P. 148; O'Toole v. Dolan, 129 Cal. 471, 62 P. 30; Livezy v. Miller, 61 Md. 336; McCann v. Bailey, 60 Mo. App. 456; Yar- borough v. Creager (Tex. Civ. App. '03), 77 S. W. 645; Bray v. Chandler, 18 C. B. (Eng.), 718, 86 E. C. L. 718; Murray v. Curry, 7 C. & P. (Eng.), 584, 32 E. C. L. 771. Compare Sec. 608. 372 AMEEICAN LAW EEAL ESTATE AGENCY. Where property is placed with a real estate agent for sale and a sale is brought about through his agency, he is entitled to his commissions, even though the first negotiations are con- ducted without his knowledge, and the owner, in order to make the sale is compelled to vary the original price and terms. Barton v. Rogers, 84 111. App. 49; McGuire v. Carlam, 61 111. App. 295 ; Jenks v. Nobles, 42 111. App. 33 ; Dowling v. Merrift* 165 Mass. 491, 43 N. E. 295; Smith v. Truitt, 107 Mo. App. 1, 80 S. W. 686 ; Hogan v. Slade, 98 Mo. App. 44, 71 S. W. 1104; Wright v. Brown, 68 Mo. App. 577; Brennan v. Roach, 47 Mo. App. 290; Gibson's Est., 3 Pa. Dist. 147, 14 Pa. Co. Ct. 241 ; Shipman v. Freeh, 1 N. Y. S. 67. Where the purchaser begins negotiations for the purchase of certain property through an agent and completes through other agents by direct negotiations, without the knowledge of the first broker, can not deprive the latter of his right to com- missions. Crowe v. Miss. Valley Trust Co., 85 Mo. App. 601. See also Sec. 454. A broker authorized to purchase, who made active efforts, but another first procured a satisfactory offer, the first broker was not entitled to a commission. Freeman v. Polstein, 97 N. Y. S. 1032, 49 Misc. 644. Compare Sec. 454. One who does not himself produce the purchaser, but who in- troduces to the seller, as a prospective purchaser, one who, acting under an independent brokerage arrangement with the owner, makes a sale, the first broker is not entitled to commissions. Peek v. Slifer, 122 111. App. 21; Latshaw v. Moore, 53 Kan. 234. Compare Sec. 454. Where a broker having property for sale called the attention of another broker thereto, and he sold, the first was not entitled to a commission. Shapiro v. Shapiro, 103 N. Y. S. 305, 117 App. Div. 817; Brannen v. Pool, 218 S. W. 186, Ark Sup. . A sale made by the second agent to a client of the first, but at a lower price, did not entitle the first to a commission. Ames v. Cameron, 19 D. C. 435; Mears v. Stone, 44 111. App. 444; Wolff v. Rosenberg, 67 Mo. App. 403; Friedman v. Havemeyer, 56 N. Y. S. 97, 37 App. Div. 518 ; Felman v. O'Brien, 51 1ST. Y. S. 309, 23 Misc. 341; Powell v. Anderson, 15 Daly (N. Y.), 219, COMMISSION AND COMPENSATION OF AGENTS. 373 4 1ST. Y. S. 706; Hendricks v. Daniels, 19 N. Y. S. 414; Powell v. Lamb, 1 N. Y. S. 431 ; Byers v. Williams, 141 N. W. 571, 175 Mich. 385. Compare Sec. 454. Defendant listed land with plaintiff and other brokers for sale. Plaintiff communicated an "offer" which defendant ac- cepted by wire, but immediately rescinded on receiving a tele- gram from the other brokers stating that they had "sold" the land. Held, that plaintiff is not entitled to recover. Hieronymus v. Atterbury, 137 S. W. 617, 156 Mo. App. 612. Defendant having employed two brokers, and they being en- gaged in a common effort to sell the property to the same person, could not rightly interfere to prevent the consummation of sale by one in order to favor the other, although he could render as- sistance by accompanying brokers upon inspection of property, boosting the sale by commendation. Lumsden v. Jones, 205 S. W. 375, Tex. Civ. App. . It is the broker who first produces a customer, and is the pro- curing cause of the sale, who is entitled to the commission, al- though the actual sale is made by another broker. Millage v. Ir- win, 187 P. 525, Colo. Sup. . A broker with whom land was listed at $29 net was entitled to commission where he was the cause of the purchaser from another place coming to look at the land and introducing the pur- chaser to the owner who, at the broker's request, priced the land at 30 an acre to the purchaser, although the sale was made by an- other broker at $28.50 per acre, with whom the land had been listed at 28, there being no evidence to show that the buyer would not have purchased at $30 if it had not been for the second bro- ker. Id. Sec. 446. Broker who was the procuring cause of the sale is entitled to the commission. The agent who is the procuring cause of the sale is entitled to compensation. See also Sec. 219. ALABAMA. Alexander v. Smith, 61 S. 68, 180 Ala. 541. 374 AMERICAN LAW REAL ESTATE AGENCY. ARKANSAS. Steivel v. Lolly (Ark. Sup. '09), 115 S. W. 1134; Bogne v. Marshall (Ark. Sup. '08), 114 S. W. 714; Hunton v. Marshall, 76 Ark. 375, 88 S. W. 963; Scott v. Patterson, 53 Ark. 419, 13 S. W. 419. CALIFORNIA. Zeimer v. Antisell, 75 Cal. 509, 17 P. 642. COLORADO. Anderson v. Smythe, 1 Colo. App. 253, 28 P. 478; Babcock v. Merritt, 1 Colo. App. 84, 27 P. 882; Geiger v. Riser (Colo. Sup. '10), 107 P. 267; Lawrence v. Weir, 3 Colo. App. 401, 33 P. 646 ; Scott v. Lloyd, 19 Colo. 401, 35 P. 733 ; Quinby v. Telford, 4 Colo. App. 210, 35 P. 276; Duncan v. Borden, 13 Colo. App. 481, 59 P. 60; Leech v. demons, 14 Colo. App. 45 59 P. 230; Wheeler v. Beers (Colo. Sup. '09), 101 P. 758. CONNECTICUT. Hoadley v. Danbury Sav. Bk., 71 Conn. 599, 42 A. 667, 44 L. R. A. 321; Duncan v. Kearney, 72 Conn. 585, 45 A. 358; Williams v. Clowes, 75 Conn. 155, 52 A. 820. DELAWARE. Hawkins v. Chandler, 8 Houst. (Del.) 434, 32 A. 464; Held- meyer v. Cleaver, 104 A. 635 (Del. Super.). DISTRICT OF COLUMBIA. Bryan v. Albert, 3 App. (D. C.) Cas. 180; Clark v. Morris, 30 App. (D. C.) Cas. 553. COMMISSION AND COMPENSATION OF AGENTS. 375 GEORGIA. Indian Trust Co. v. Sandlein, 125 Ga. 222, 54 S. E. 65. IDAHO. Church v. Denning, 14 Ida. 776, 96 P. 263. ILLINOIS. Henry v. Stewart, 185 111. 448, 57 N. E. 190; Rigdon v. Moore, 226 111. 382, 80 N. E. 901; Sievers v. Griffin, 14 111. App. 63; Davis v. Gassett, 30 111. App. 41; Adams v. Decker, 34 111. App. 17; Jenks v. Nobles, 42 111. App. 33; Clark v. Nessler, 50 111. App. 550; Watts v. Howard, 51 111. App. 243; Neufeld v. Oren, 60 111. App. 350; McGuire v. Carlan, 61 111. App. 295; Pate v. March, 65 111. App. 482; Barton v. Rogers, 84 111. App. . 49 ; Dean v. J.rc/ier, 103 111. App. 455 ; Shannon v. Potts, 117 111. App. 80 ; Rigdon v. Strong, 128 111. App. 447 ; West End Store v. Mann, 133 111. App. 544; Finch Bros. v. Bete, 134 111. App. 471 ; Dickson v. Owens, 134 111. App. 561 ; Patten v. W^'s, 134 111. App. 645; Gould v. Ricard, 136 111. App. 322; Wright v. McClintock, 136 111. App. 438; tffo'we v. Ferry (111. App. '09), 88 N. E. 186; Winetur v. Jones, 113 111. App. 129. INDIANA. Clifford v. Met/er, 6 Ind. App. 633, 34 N. E. 23; Mullen v. Bowew, 26 Ind. App. 253, 59 N. E. 419; Shelton v. Lundin (Ind. App. '10), 90 N. E. 387. IOWA. Kelley v. Stone, 94 Iowa, 316, 62 N. W. 842; Stanford v. Bell, 99 Iowa, 545, 68 N. W. 817; Semple v. Rand, 112 Iowa, 616, 84 N. W. 683; Rounds v. Alee, 116 Iowa, 345, 89 N. W. 1098; Hun v. Ashton, 121 Iowa, 265, 96 N. W. 745; Gibson v. Hunt (Iowa Sup. '03), 94 N. W. 277; Lewis v. Susmilch, 130 Iowa, 203, 106 N. W. 624. 376 AMEEICAN LAW EEAL ESTATE AGENCY. KANSAS. Driesbach v. Rollins, 39 Kan. 268, 18 P. 187; Marlott v. Elliott, 69 Kan. 477, 77 P. 104; Votaw v. McKeever, 76 Kan. 870, 92 P. 1120. KENTUCKY. Higgins v. Miller, 109 Ky. 203, 22 L. R. 702, 58 S. W. 580 ; Collier v. Johnson, 23 Ky. L. R. 2453, 67 S. W. 830 ; Hopkins v. Moseley, 31 Ky. L. R. 1308, 105 S. W. 104; Hobbs v. Miller, 14 Ky. L. R. 719. LOUISIANA. Taylor v. Martin, 109 La. 137, 33 S. 112. MAINE. Straut v. Hubbard (Me. Sup. '08), 71 A. 1020. MARYLAND. Schwartz v. Yearly, 31 Md. 270; Livezy v. Miller, 61 Md. 336; Walker v. Baldwin, 106 Md. 619, 68 A. 25. MASSACHUSETTS. Desmond v. Stebbins, 140 Mass. 339, 5 N. E. 150; Dowling v. Merrill, 165 Mass. 491, 43 N. E. 295; WMtcomb v. Macon, 170 Mass. 479, 49 N. E. 742; French v. McKay, 181 Mass. 485, 63 N. E. 1068; Sullivan v. Tw/te (Mass. Sup. '09), 89 N. E. 239; Willard v. Wn0/i* (Mass. Sup. '09), 89 N. E. 559. MICHIGAN. Ellsmore v. Gamble, 62 Mich. 543, 29 N. W. 97; Wood v. Wells, 103 Mich. 320, 61 N. W. 503. MINNESOTA. Armstrong v. Wann, 29 Minn. 126, 12 N. W. 345; Putman v. Howe, 39 Minn. 363, 40 N. W. 258. COMMISSION AND COMPENSATION OF AGENTS. 377 MISSOURI. Brennan v. Roach, 47 Mo. 290; Stande v. Blesch, 42 Mo. App. 578; Russell v. Poor (Mo. App. '08), 119 S. W. 433; Goffe v. Gibson, 18 Mo. App. 1; Ramsey v. West, 31 Mo. App. 676 ; Millan v. Porter, 31 Mo. App. 563 ; Wright v. Brown, 68 Mo. App. 577 ; Crowley v. Somerville, 70 Mo. App. 376 ; Camp- bell v. Vanstine, 73 Mo. App. 84; Hogan v. Slade, 98 Mo. App. 44, 71 S. W. 1104; McCreary v. Kellogg, 106 Mo. App. 597, 81 S. W. 465 ; Smith v. Truitt, 107 Mo. App. 1, 80 S. W. 686 ; Bailee v. McMurray, 113 Mo. App. 253; 88 S. W. 151; Glade v. Eastern III. Min. Co., 129 Mo. App. 443, 107 S. W. 1002. NEBRASKA. Frenzer v. Lee (Neb. Sup. '02), 90 N. W. 914; Butler v. Kennard, 23 Neb. 357, 36 N. W. 579; St. Felix v. Gries, 34 Neb. 800, 52 N. W. 821 ; Hambleton v. Fort, 58 Neb. 282, 78 N. W. 498 ; Craig v. Weed, 58 Neb. 782, 79 N. W. 718 ; Lewis v. McDonald(Neb. Sup. '09), 120 N. W. 207 ; Wasmer v. Lean, 32 Neb. 519, 49 N. W. 463. NEW HAMPSHIRE. Morrison v. Hall 96 A. 298, N. H. Sup. . NEW JERSEY. Shepherd v. Hadden, 29 N. J. L. 334; Vreeland v. Vetterlein, 33 L. J. L. 247; Derrickson v. Quimby, 43 N. J. L. 373. NEW MEXICO. Jackson v. Brower, 167 P. 6, 22 N. M. 615. 378 AMERICAN LAW REAL ESTATE AGENCY. NEW YORK. Lloyd v. Matthews, 51 N. Y. 124; Sussdorf v. Schmidt, 55 N. Y. 319 ; Wylie v. Marine Nat. Bk., 61 N. Y. 415 ; Colwell v. Tompkins, 158 N. Y. 690, 53 N. E. 1124 ; Walton v. McMorrow, 175 N. Y. 493, 67 N. E. 1090; Shipman v. Freeh, 1 N. Y. S. 67; King v. Bauer, 8 N. Y. S. 466 ; Turner v. Putnam, 13 N. Y. S. 567; Bickard v. Hoffman, 19 N. Y. S. 472; Johnson v. Burn- heimer, 19 N. Y. S. 37 ; Van Doren v. Jelliff, 20 N. Y. S. 636, 1 Misc. 354; Meyers v. Dean, 29 N. Y. S. 578; 9 Misc. 183; McKnight v. Thayer, 21 N. Y. S. 440; Whitehead v. Helsey, 22 N. Y. S. 923, 3 Misc. 378; Baker v. Thomas, 31 N. Y. S. 993, 11 Misc. 112; Atwater v. Wilson, 34 N. Y. S. 153, 13 (Misc. 117; Ware v. Dos Passos, 38 N. Y. S. 673, 4 App. Div. 32; Randruff v. Schroeder, 46 N. Y. S. 943, 21 Misc. 52; Woods v. Barton, 47 N. Y. S. 184, 21 Misc. 326; Wychoff v. Bissell, 48 N. Y. S. 1018, 24 App. Div. 66 ; Hamilton v. Gillander, 49 N. Y. S. 663, 26 App. Div. 156 ; Hay v. Platt, 21 N. Y. S. 362, 66 Hun, 488 ; McNulty v. Rowe, 59 N. Y. S. 690, 28 Misc. 523 ; Goodwin v. Brennecke, 47 N. Y. S. 266, 21 App. Div. 138; Burke v. Pfeffer, 68 N. Y. S. 799, 34 Misc. 794; Weinstein v. Goldberg, 40 N. Y. S. 680, 17 Misc. 613, 75 N. Y. St. 84; De Zavola v. Rosaliner, 84 N. Y. S. 969 ; Schatzberg v. Frosworth, 84 N. Y. S. 259 ; Whiteley v. Terry, 82 N. Y. S. 89, 83 App. Div. 197; Summers v. Carey, 74 N. Y. S. 980, 69 App. Div. 428 ; Bellesheim v. Palm, 66 N. Y. S. 273, 54 App. Div. 77 ; Johnson v. Lord, 54 N. Y. S. 922, 35 App. Div. 325 ; Phinney v. Chesebro, 84 N. Y. S. 449, 87 App. Div. 409; Woolley v. Buhler, 25 N. Y. S. 1045, 73 Hun, 158; Smith v. Seattle, etc., R. Co., 25 N. Y. S. 368, 72 Hun, 202; Martin v. Fegan, 88 N. Y. S. 472, 95 App. Div. 154; Doran v. Bernard, 45 N. Y. S. 387, 18 App. Div. 36; Southwick v. Swavinski, 99 N. Y. S. 1079, 114 App. Div. 681; O'Shea v. Brill, 108 N. Y. S. 1020; Dreyer v. Rush, 42 How. Pr. 22, 3 Daly, 434; Harris v. Burt- nell, 2 Daly, 189; Moracella v. Odell, 3 Daly, 123; Jungeblut v. Gindra, 118 N. Y. S. 942 ; Winans v. Jaques, 10 Daly, 487 ; Nicholson v. Harrison, 120 N. Y. S. 923; Chilton v. Butler, 1 E. D. Smith, 150; Morgan v. Mason, 4 E. D. Smith, 636; White v. Twitchings, 26 Hun, 503; McClave v. Paine, 2 Sweeney, 407, 41 How. Pr. 140 ; Frazer v. Brown, 67 N. Y. S. 966, 33 Misc. 591; Glentworthy v. Lathe, 21 Barb. 145; Met- calfe v. Gordon, 83 N. Y. S. 808, 86 App. Div. 368. COMMISSION AND COMPENSATION OF AGENTS. 379 NORTH CAROLINA. Kinsland v. GnmsTiaw (N. C. Sup. '07), 59 S. E. 1000. OREGON. Wolverton v. Tuttler, 51 Ore. 501, 94 P. 961; Jennings v. Trummers, 52 Ore. 149, 96 P. 874. OHIO. Roush v. Loeffler, 18 Cir. Ct. 806, 6 0. Cir. Dec. 760. OKLAHOMA. Yarborough v. Richardson, 131 P. 680, 38 Okl. 11. PENNSYLVANIA. Earp v. Cummins, 54 Pa. St. 394; Haines v. Signer, 9 Phila. 51 ; Burchfield v. Griffith, 10 Pa. Super. Ct. 618 ; Inslee v. Jones, Brightly, 76; Gibsons EsL, 3 Pa. Dist. 147, 14 Pa. Co. Ct. 241. EHODE ISLAND. Greene v. Mitchell, 102 A. 516, R. I. Sup. . SOUTH CAROLINA. Goldsmith v. Coxe, 80 S. C. 341, 61 S. E. 555. SOUTH DAKOTA. Wychoff v. Kerr (S. D. Sup. '09), 123 N. W. 733. 380 AMEBICAN LAW EEAL ESTATE AGENCY. TEXAS. Bowser v. Field (Tex. Civ. App. '91), 17 S. W. 45; Smith v. Fowler (Tex. C. A. '09), 122 S. "W. 598; Newton v. Dickson (Tex. Civ. App. '09), 116 S. W. 143; Brown v. Shelton (Tex. Civ. App. '93), 23 S. W. 483; Hahl v. Wickes, 44 Tex. Civ. App. 76, 97 S. W. 838; Gray v. Carroll (Tex. Civ. App. '07), 105 S. W. 214; West v. Thompson (Tex. Civ. App. '08), 106 S. W. 1134; Bowman v. 8. W. Land Co. (Tex. Civ. App. '08), 107 S. W. 585; Edwards v. Pike (Tex. Civ. App. '08), 107 S. W. 586; Schultz v. Zelman (Tex. Civ. App. '08), 111 S. W. 776; Peach River Lumber Co. v. Montgomery (Tex. Civ. App. '08), 115 S. W. 87. VlBGINIA. Cannon v. Bates, 80 S. E. 581, 115 Va. 711. WASHINGTON. N orris v. Byrne, 38 Wash. 592, 80 P. 808; Prink v. Gilbert, 101 P. 1088, 53 Wash. 392 ; Dore v. Jones, 126 P. 413, 70 Wash. 157; Parker v. Seattle Land & Imp. Co., 165 P. 1086, Wash. Sup. . WEST VIKGINIA. Cooper v. Upton (W. Va. Sup. '09), 64 S. E. 523. WYOMING. Murphy v. W. & W. Live Stock Co., 187 P. 187, re. den., 189 P. 857, Wyo. Sup. . ENGLAND. Bray v. Chandler, 18 C. B. 717, 86 E. C. L. 718; Murray v. Curry, 7 C. & P. 584, 32 E. C. L. 771; Colonial Trust Co. v. Pac. Packing & Nav. Co., 158 Fed. 277, 85 C. C. A. 539. Com- pare Sec. 581. COMMISSION AND COMPENSATION OP AGENTS. 381 If a broker is the procuring cause of the sale, the owner can not sell at a lower price, and thereby escape liability for commissions. Hubachek v. Hazzard, 83 Minn. 437, 86 N. W. 426; Frayner v. Morse, 55 Neb. 595, 75 N. W. 1103. If the broker be the instrument through whom a sale has been ef- fected, no sort of artifice, deceit or fraud will deprive him of his commission. C order v. O'Neill, 176 Mo. 401, 75 S. W. 764, 774. The fact that before a sale the broker did not inform the owner that the prospective purchaser was his customer is not altogether controlling. Metcalfe v. Gordon, 83 N. Y. S. 808, 86 App. Div. 368. Where a broker is employed to find a pur- chaser at a price satisfactory to his principal, as a condition to demand commissions he must be the procuring cause of the sale. Reads v. Hank, 147 Mich. 42, 110 N. W. 130, 13 D. L. N. 952. A broker who merely called the attention of a church officer to a lot he had for sale, telling him the price, is not the efficient and procuring cause of the sale, where the church refused to purchase through him, and bought the property through another agent. Witherbee v. Walker, 42 Colo. 1, 93 P. 1118. Plaintiff, a real estate broker, with authority to sell land, visited defendant with a purchaser, and thereafter continued negotiations which were never expressly terminated. Without any intervening agency the purchaser decided to buy, but made an arrangement with another real estate broker where- by such broker agreed to divide his commissions with the pur- chaser, and the latter broker, with full knowledge of plain- tiff's negotiations, solicited and received authority to sell the land, the owner not knowing of plaintiff's negotiations with the purchaser. Held, that, as between the brokers, plaintiff's efforts were the procuring cause of the sale, and he was en- titled to the commissions. Lewis v. McDonald, 83 Neb. 694, 120 N. W. 207. See also Sec. 444. 382 AMERICAN LAW EEAL ESTATE AGENCY. If a broker is the procuring cause of a sale of realty, it is im- material to his right to commission that he did not personally conduct negotiations, was not present when the bargain was closed, or that the principal at the time did not know that the purchaser was found by the broker. Gilbert v. McCullough, 125 1ST. W. 175, 146 Iowa, 353 ; McKinney v. Thedford, 166 S. W. 443. The broker must be the direct and proximate cause, and not an indirect, incidental or remote cause of bringing a customer to his principal. Lord v. U. S. Trans. Co., 128 N. Y. Sup. 451, 143 App. Div. 437. The broker is entitled to the commission who brought the parties together, and not the other, who was employed by the purchaser and closed the sale. Central Turnverein of Pittsburgh v. Fitzpatriclc, 86 A. 487, 238 Pa. 532. Broker, to be the procuring cause of a sale, must first call the purchaser's attention to the property and start negotiations which culminate in a sale. Wheeler v. Hunt, 133 P. 52, 37 Okl. 523 ; Langford v. Issenbuth, 134 N. W. 889, 28 S. D. 451. Where negotiations resulting in a sale of land were not car- ried on by the agent, but by the owner, the agent must show that he was the efficient cause of the negotiations resulting in a sale before he will be entitled to a commission. Cooper v. Upton, 64 S. E. 523, 60 W. Ya. 648, 65 W. Va. 401. To entitle him to commissions, a broker need not personally conduct the negotiations leading to the sale, or be present when it is completed, nor need the principal know, at the time, that the purchaser was found by the broker, it only being essential that the broker's efforts be the producing cause of the sale. Justy v. Erro, 117 P. 575, 16 Cal. App. 519; Pridmore v. Wilson, 159 111. App. 343; Sidebothom v. Spengler, 133 S. W. 101, 154 Mo. App. 11. Where a sale is actually made through the owner closing the deal with the customer of the broker, the broker need not, to re- cover, show that the sale was completed within the time fixed in the contract of employment, or in an option on the property, pro- vided the broker initiated the transaction of purchase within the prescribed time, and was the procuring cause. Cole v. Crump, 156 S. W. 769, 174 Mo. App. 215. COMMISSION AND COMPENSATION OF AGENTS. 383 Under the ordinary realty broker's contract, one whose services were the predominating efficient cause of the sale is entitled to the commission, although others may have contributed to its con- summation. Myers v. Batcheller, 163 N. Y. Sup. 688, 177 App. Div. 47. Where the defendant listed her property for sale with the plain- tiffs, who advertised it, and later one of them showed it to the purchaser, who had been referred to them by another real estate agent to whom the purchaser had applied for information as to places for rent, suggesting that the purchaser buy the place, and gave him the price, and notified the defendant that the property had been submitted to the purchaser, and the latter returned to the office of the other agent, where the sale was negotiated; held, that the plaintiffs were the procuring cause of the sale and en- titled to the commission. Engels v. Manning, 202 111. App. 209. Where the plaintiff, after submitting to the defendant a propo- sition for trading the defendant's real estate for certain other real estate, which the defendant rejected, and informed plaintiff he wanted cash for his property, and took no further action in the matter; and about ten months later a trade of such real es- tate was tendered through another agent, who effected such trade by first procuring a purchaser for the real estate the defendant took in trade. Held, that the plaintiff was not the procuring cause of the trade, notwithstanding he first proposed it. Baldino v. Kadison, 204 111. App. 197. Plaintiff, who showed purchaser a number of farms, including defendant's farm, after he had arranged to visit such farms with another broker from whom he subsequently purchased; held, not effective agent in bringing about the sale. Bliss v. Reed,, 102 A. 610, E. I. . Where an owner of real estate sets machinery in motion to induce a sale of real estate through the agency of a broker, and a sale results through the broker's intervention, it is not material that the negotiations were concluded directly with the owner; in such case the broker is entitled to his commissions. Cain v. Werner, 67 Pa. Super. Ct. 438. If, after negotiations between the owner of real estate and a prospective purchaser have been broken off, the owner, after prom- ising an agent that he will pay him commissions if he will get 384 AMERICAN LAW EEAL ESTATE AGENCY. such prospective purcEaser to buy the property, makes a sale to such purchaser, after efforts of the agent had had the effect of bringing the parties to an understanding, such agent may recover the agreed commissions. O'Connor v. Kennedy, 200 111. App. 426. Under bare contract to pay a commission "for trading my 615 acres farm at H. for garage at H.," the agent is entitled to com- mission on such 615 acres, although owner gave other land in ad- dition, and made various arrangements as to incumbrances with- out consulting the agent. Herr v. McConnell, 119 N. E. 496, Ind. App. . Plaintiffs were not the procuring cause of the trade of defend- ant's property, where defendant refused to make it without know- ing the name of the owner of the other property when it was first proposed by plaintiff, and several months later effected a trade through his answer to an advertisement by the owner of the prop- erty, with which plaintiffs had nothing to do. Roegmer v. Frey, 209 111. App. 303. Broker having contract to sell land at stipulated price can not recover commissions on sale made by seller on the ground of being the procuring cause of such sale, unless it affirmatively ap- pears that sale was made on the terms on which plaintiff was au- thorized to procure a purchaser. Sanden & Huss v. Ausenhus, 168 N". W. 801, Iowa Sup. . That brokers have introduced a prospective purchaser to look at certain land, but has failed to make a sale before the land is withdrawn from the market, does not establish connection with a subsequent purchase of such land by the same purchaser direct from the owner, so as to create a liability for commissions where, during the intervening time, the purchaser has changed his mind. Saunders v. Hackley & Hume Co., 208 S. W. 67, Mo. Sup. . Where purchasers had been trying to buy property for a period of eleven years, and during such period had been negotiating with owners, broker was not procuring O r efficient cause of sale, though he had the property listed and had sent purchasers letters de- scribing it, among other properties for sale, without calling par- ticular attention to it. Eoih v. Thomson, 180 P. 656, Cal. Sup. . Where a broker employed to sell property found a prospective purchaser, but failed to sell, and such purchaser thereafter secretly COMMISSION AND COMPENSATION OF AGENTS. 385 arranged with a third party to purchase the property directly from the owner, and neither the broker nor the owner knew of such secret arrangement, the broker was not the procuring cause of the sale. Ritch v. Robertson, 106 A. 509, Conn. Sup. . Where sale was effected upon terms entirely different from the offer made by plaintiff for the purchaser he interested, and through the disassociated efforts of an independent broker, plain- tiff could not recover commissions, he not being the procuring cause of the contract. Morgan v. Congregation Agudath Achim of Harlem, 176 K Y. Sup. 707. It is not the law that a real estate broker can not recover a commission on sale of a farm, though he was the inducing cause thereof, if the owner did not know when he sold that the broker had been the main efficient cause of inducing the purchaser to buy. Thomas v. Wychoff, 174 N. W. 26, Iowa Sup. . If a realty broker told the purchaser of a farm "he would not want the land, that there was no use to go to see it, and that it was rough," etc., but the purchaser, nevertheless, bought through the efforts of some one other than plaintiff, plaintiff was not en- titled to a commission. Id. A broker who did not have the exclusive sale of property can not recover commissions without showing that his services were the effective cause of bringing about the sale, it being insufficient that he procured the one and communicated to the owner who purchased the property. Rosenfield v. Wall, 109 A. 409, Conn. Sup. . Where two or more brokers, without exclusive authority to sell, each playing some part in bringing about a sale, each is not en- titled to a commission, or to a share of the commission, but some one of them is entitled to the whole commission; t. e., he who deserves to be regarded as the procuring cause of the sale by reason of his efforts having been the efficient proximate cause of its accomplishment, or the predominating efficient cause. Murphy v. Linsky, 109 A. 412, Conn. Sup. ; Rosenfield v. Wall, 109 A. 409, Conn. Sup. . Defendant listed his property with plaintiff broker for sale, but gave no exclusive agency, and while the broker discovered one who ultimately purchased the property, he was unable to procure from the purchaser an offer which the owner would accept. Held, that 386 AMERICAN LAW EEAL ESTATE AGENCY. where the owner accepted a larger offer made through a broker whom the purchaser engaged, plaintiff could not recover commis- sion, not having been the efficient cause of the sale. Rosenfield v. Wall 109 A. 409, Conn. Sup. . The mere fact that a realty broker, without an exclusive agency to sell, first approached the ultimate buyer through the tatter's agents, and thus brought him into the field as a possible pur- chaser, a sale to him on different terms than first authorized, but satisfactory to the owner, if in fact consummated, is not decisive of the broker's right to a commission, though deserving of consid- eration in passing on claim. Murphy v. LinsTcy, 109 A. 412, Conn. Sup. . Where broker, who had been employed by owner to find a pur- chaser upon terms acceptable to her, introduced purchaser to owner, and where the contract thereupon entered into was there- after abrogated, and a new contract entered into upon different terms, and where broker's employment was continued after abro- gation, and contract of agency was in full force at the time of making the new contract, owner was liable for commission, even though in entering into the new contract parties had negotiated directly, without the knowledge of the broker, the broker being the procuring cause. Harvey & Newins, Inc. v. Hermann, 181 N. Y. Sup. 42. In a realty broker's action for commissions, as having brought about a sale to the ultimate buyer first approached by him, evi- dence held to sustain jury's finding that plaintiff was not the efficient procuring cause of sale, despite his claim that when he first approached the buyer the latter was ready, able and willing to buy on the terms ultimately concluded, and subsequently merely availed himself of opportunity to do so through another broker, owner having meanwhile decided to accept less price. Mur- phy v. Linsky, 109 A. 412, Conn. Sup. . Broker, to be entitled to recover commissions, must have been the procuring cause of that for which he is employed, it being insufficient that his act was merely one of the links in a chain of causes. Low v. Paddock, 220 S. W. 969, Mo. App. . Where the terms of a broker's contract authorizing him to sell a farm bound the owner for commissions if sale was made on the terms stated, or on such other price or terms as might thereafter COMMISSION AND COMPENSATION OF AGENTS. 387 be agreed to by the owner, the fact that the owner and a pros- pective buyer procured by the broker did not agree on terms at their first meeting, did not absolve the owner from payment of commission if a sale was subsequently made to the buyer on dif- ferent terms, and the broker was its procuring cause, though the owner had previously revoked the broker's authority, the contract covering no specific time, such revocation having been in bad faith and to avoid payment of commission. Baskett v. Jones, 225 S. W. 158, Ky. Ct. App. . Simply to show that a broker is the efficient cause of consum- mation of a sale does not show an agency to sell. Newell v. Lafe- rella, 225 S. W. 853, Tex. Civ. App. . To make the procuring the "efficient and procuring cause" of a sale, so as to entitle him to his commission, it is essential that it result from his efforts, such as introducing the purchaser to the seller, advertising, giving the seller the name of the customer, or showing the purchaser over the premises. Garner v. Davis, 225 S. W. 567, Tex. Civ. App. . Where the owner placed his property in the hands of several brokers, giving none the exclusive right of sale, and several bro- kers called the purchaser's attention to the property, but only one stopped and pointed it out to him, at which time the purchaser was not interested in buying it, but subsequently the purchaser, at his request, was again shown the property by another real estate agent, and purchased the property; the first real estate agent was not, under such evidence, entitled to a commission, as he was not the efficient procuring cause of the sale. Moore v. Rich, 86 S. 772, Miss. Sup. . CHAPTER III. SECTION. SECTION. 447. Continuity broken, and its 449. Consummation of contract. effect upon the rights of 450. Introduction of prospective the broker. purchaser. 448. Sequence broken, and its ef- 450a. Broker entitled to compen- fect upon the broker's sation on furnishing name right to commissions. of prospective purchaser to owner. Sec. 447. Continuity broken, and its effect upon the rights of the broker. Plaintiff had a contract with defendant by which in consid- eration of special efforts of the former to sell a house belonging to the defendant, and of advertising the house in a circular which plaintiff was to publish, the defendant agreed to pay a certain commission on the sum for which the house should be sold; if the sale was made by any other broker, a minimum price was fixed at which the property was to be sold. Held, that the plaintiff was not entitled to any commission where the house was subsequently sold through another broker by the acceptance of a standing offer made through such broker sev- eral months after the contract with plaintiff was entered into, and the sale being at a less figure than that named in the con- tract with plaintiff. Powell v. Anderson, 15 Daly (N. Y.), 210, 4 N. Y. S. 706. Where an owner openly places his property in the hands of rival agents for sale and one makes the sale to a customer with whom the other had first, but unsuccessfully negotiated, the owner is not liable to the latter for commissions. Carper v. Sweet, 26 Colo. 547, 57 P. 45; Wiggins v. Wilson, 55 Fla. 346, 45 S. 1011; Girardieu v. Gibson, 122 Ga. 313, 50 S. E. 91; Carlson v. Nathan, 43 111. App. 364; West End Co. v. Mann, 133 111. App. 544; Platt v. Jalir, 9 Ind. App. 58, 36 N. E. 294; Livezy v. Miller, 61 Md. 336; Leonard v. Eld- 388 COMMISSION AND COMPENSATION OF AGENTS. 389 ridge, 184 Mass. 594, 69 N. E. 337; Crowningshield v. Foster, 169 Mass. 237, 47 N. E. 879; Chandler v. Sutton, 5 Daly (N. Y.), H2; De Zavola v. Rozaliner, 84 N. Y. S. 969; Friedman v. Havemeyer, 55 N. Y. S. 97, 37 App. Div. 518; Earp v. Cummins, 54 Pa. St. 394; Dewall v. Moody, 24 Tex. Civ. App. 627, 60 S. W. 269; Montgomery v. Biering (Tex. Civ. App. '95), 30 S. W. 508; Land Mtge. Bk. v. Hargis (Tex. Civ. App. '02), 70 S. W. 352. If the broker fails to bring a customer to terms and aban- dons negotiations, he is not ordinarily entitled to commissions upon a sale made by the owner to the customer. Watts v. Howard, 51 111. App. 243; Cullen v. Bell, 43 Minn. 226, 45 N. W. 428; Cathcart v. Bacon, 47 Minn. 34, 49 N. W. 331; Tooker v. Duckworth, 107 Mo. App. 231, 80 S. W. 963; Hen- kel v. Dunn, 97 Mo. App. 671, 71 S. W. 735 ; Barnard v. Mon- nott, 34 Barb. (N. Y.) 90; Meyer v. Strauss, 58 N. Y. S. 904, 42 App. Div. 613 ; Getzler v. Boehm, 38 N. Y. S. 52, 16 Misc. 390; Alden v. Earle, 121 N. Y. 688, 24 N. E. 705; Tyng v. Constable, 71 N. Y. S. 820, 35 Misc. 283 ; Miller v. Vining, 98 N. Y. S. 466, 112 App. Div. 304 ; Schano v. Storch, 107 N. Y. S. 26, 56 Misc. 484; Jones v. Buck (Iowa Sup. '09), 120 N. W. 112; Cannon v. Bates, 80 S. E. 581, 115 Va. 711. See also Sec. 148. "Where a broker employed to sell a whole tract of land or a part thereof, failed, and an attempt was made to discharge him, but he continued his negotiations and the owner after- ward sold a portion to the broker's customer, the broker was held entitled to recover a proportionate commission. Diamond v. Wheeler, 80 N. Y. S. 416, 80 N. Y. App. Div. 58. Plaintiffs, to recover under their agreement to negotiate the purchase for defendant of land for certain commissions on the amount of the purchase, must show that through their efforts and negotiations defendant became the purchaser; this is not the case where their efforts to get a price from the owner which defendant would accept failed, and long after their negotia- tions and dealings with him had ceased, and they and defend- ant had abandoned hope of reaching an agreement with him, he, on learning that defendant was to commence condemna- tion proceedings for the land, made an offer to defendant, which was accepted, to submit to arbitration the price at which 390 AMEBICAN" LAW BEAL ESTATE AGENCY. defendant should take the property. Martien v. Mayor, etc., Baltimore, 109 Md. 260, 71 A. 966. If a broker, after offering a farm at a price in excess of the lowest price authorized by the owner, which the purchaser said was too high, allowed the purchaser to go with the un- derstanding that the price stated was the lowest which would be accepted, and made no arrangements for further negotia- tions, and the purchaser notified the owner of the negotiations with the broker, and that he would not deal further with him, and the owner, in good faith, sold the farm to the purchaser, the broker would not be entitled to commissions on the sale. Heenan v. Harris (Mich. Sup. '09), 121 N. W. 741, 16 D. L. N. 344. See also Sec. 292. The predominating, inducing cause of a sale or exchange of properties is the cause originating a series of events which, with- out break of continuity, results in a sale or exchange. In re Breon Lumber Co., 181 F. 909; Nooning v. Miller, 165 S. W. 1119, 178 Mo. App. 297. Sec. 448. Sequence broken, and its effect upon the broker's right to commissions. A broker who negotiated with one person, who called the attention of another to the property, and that other bought from the vendor, or through another broker, is not entitled to commissions; to be entitled to commissions he must be the procuring cause and not merely a cause ot causes. Baumgarth v. Hayne, 54 111. App. 496; Gleason v. Nelson, 162 Mass. 245, 38 N. E. 497; Vandyke v. Walker, 49 Mo. App. 381; Burk- holder v. Fonner, 34 Neb. 1, 51 N W. 293; Johnson v. Seidal, 150 Pa. St. 396, 24 A. 687. See also Sec. 69. Under somewhat similar circumstances, in another State, a broker was held entitled to recover commissions. Lincoln v. McClatchie, 36 Conn. 136. See also Games v. Finnegan, 198 Mass. 128, 84 N. E. 324. In the case of Gleason v. Nelson, 162 Mass., the court, re- ferring to the Connecticut case, observes that the broker in that case, "advertised the property; A. saw the advertisement, conferred with the broker, and went and told his friend B., in whose behalf he felt an interest, and B. bought the property. COMMISSION AND COMPENSATION OF AGENTS. 391 It was held that the broker was the procuring cause of the sale and so was entitled to his commission." But, "where there has been no direct communication between the broker and the pur- chaser, it must be shown affirmatively that the latter was induced to enter into the negotiation which resulted in the purchase through the means employed by the broker for that purpose. If the broker merely talked about the property with different persons, and one of them of his own accord, and not acting in behalf of the broker, mentioned to another that the property was for sale, and such last mentioned person thereupon looked into the matter and finally became the purchaser, the agency of the broker in in- ducing the sale was not sufficiently direct to entitle him to a com- mission." (162 Mass. 249-250.) See the next Section. Where a real estate broker employed to procure a building site for a corporation directed the attention of the corporation to a site which the corporation subsequently purchased at a price less than that stated by the broker, and the negotiations resulting in the purchase were brought about by the broker's disclosure of the property, he had earned his commission; but if the property, as disclosed by the broker, was not satisfactory to the corporation, and the broker's disclosure did not result in negotiations leading to the purchase, or the negotiations began as a result of a dis- closure, without pointing to the ultimate purchase, was due to the acts of another, the broker could not recover commissions. Murphy v. Knights of Columbus Building Co., 135 S. W. 446, 155 Mo. App. 649. Where an agent failed to get his offer within the terms of his authorization, and the purchaser afterwards buys the same piece of property on the same or less terms than those on which the first agent had authority to sell, the chain of causation would be broken. Grain v. Miles, 134 S. W. 52, 154 Mo. App. 338. Sec. 449. Consummation of contract. Where a broker is employed to sell or exchange property the terms of the employment may require the completion of the contract or transfer of the title before compensation is earned, unless the act of the principal has prevented perform- ance. Hyams v. Miller, 71 Ga. 608; Eerfoot v. Steele, 113 111. 392 AMERICAN LAW REAL ESTATE AGENCY. 610; Jenkins v. Hollingsworth, 83 111. App. 139; Ormsby v. Graham, 123 Iowa, 202, 98 N. W. 724; Boyd v. Watson, 101 Iowa, 214, 70 N. W. 120; Strait on v. Sam'l. W. Jones Co., 20 Ky. L. E. 1787, 50 S. W. 33; De Santos v. Tcwey, 13 La. Ann. 151; Didson v. Duraldo, 2 Eob. (La.) 163; Games v. Howard, 180 Mass. 569, 63 N. E. 122; Kronenberger v. Bier- ling, 76 N. Y. S. 895, 37 Misc. 817; Feiner v. Kobke, 34 N. Y. S. 676, 13 Misc. 499; Pierce v. Trwtt (Pa. Sup. '88), 12 A. 661 ; Michener v. Beiern, 9 Pa. Co. Ct. 637 ; Brennam v. Perry, 7 Phila. (Pa.) 242; Lemper v. Armstrong (Wash. Sup. '09), 102 P. 775; Pratt v. Patterson, 7 Phila. (Pa.) 135; Owen v. Kuhn (Tex. Civ. App. '03), 72 S. W. 432; Morton v. Barney, 140 111. App. 33 ; Thos. L. Reynolds Co. v. Toch, 121 N. Y. Sup. 85 ; Hopkins v. Settle, 149 P. 890, 46 Okl. 801 ; Cheek v. Nichol- son, 133 S. W. 707, Tex. Civ. App. ; Handley v. Shaffer, 59 S. 286, 177 Ala. 636 ; Reeder v. Epps, 166 S. W. 747, 112 Ark. 566; Justy v. Erro, 117 P. 575, 16 Cal. App. 519; Perkins v. Russell, 137 P. 907, 56 Colo. 120; Nayl v. Small, 138 N. W. 849, 159 Iowa, 387; Green v. Fist, 132 P. 179, 89 Kan. 536; Duncan v. Turner, 154 S. W. 816, 171 Mo. App. 661; Tull v. Starmer, 176 S. W. 511, 188 Mo. App. 713; Ryer v. Ninningham, 75 A. 890, 78 N. J. Law, 742; Clark v. Rast Lake Lumber Co., 73 S. E. 793, 158 N. C. 139; Bailey v. Padgett, 70 S. 637, 195 Ala. 203; Posten v. Hall, 132 S. W. 1001, 97 Ark. 23; Watkins v. Pashalinsky, 76 A. 1104, 83 Conn. 458, 20 Ann. Gas. 1023; Fin- nerty v. Stratton's Est, 128 P. 667, 53 Colo. 17 ; Shinn v. Evans, 37 App. D. C. 304; Realty Bond & Finance Co. v. Point Rich- mond Canal & Land Co., 152 P. 413, 171 Cal. 238; Home Bank- ing & Realty Go. v. Baum, 82 A. 970, 85 Conn. 383 ; Humphries & Jackson v. Smith, 63 S. E. 248, 5 Ga. App. 340; Kesler v. Stultz, 84 S. E. 201, 15 Ga. App. 735; Myers v. Buell, 142 111. App. 467; Haynes v. Oliver, 154 111. App. 639; Reeve v. Fetzer, 139 N. W. 484, Iowa Sup. ; Ketcham v. Axelson, 142 N. W. 62, 160 Iowa, 456; Johnson v. Huber, 103 P. 99, 80 Kan. 571; C. H. Graves & Co. v. Cook, 131 N. W. 854, 115 Minn. 34; Knight v. Brown, 147 N. Y. Sup. 628, 162 App. Div. 438; Levy v. Dunken Realty Co., 179 S. W. 679, Tex. Civ. App. ; Low Moor Iron Co. of Va. v. Jackson, 84 S. E. 100, 117 Va. 76; Smith v. Adelberg, 130 P. 494, 72 Wash. 434; Fawver v. Fullin- COMMISSION AND COMPENSATION OF AGENTS. 393 gim, 149 S. W. 746; Pederson v. North Yakima & East Selah Irr. Co., 116 P. 279, 63 Wash. 636; Simmons v. Oneth, 124 S. W. 534, 140 Mo. App. 269 ; Duke v. Graham, 143 N. W. 817, 163 Iowa, 272; Eugill v. Weakley, 61 S. E. 360, 64 W. Va. 210, 15 L. E. A. (N. S.), 1262; Hicks v. Christeson, 164 P. 395, Cal. Sup. ; Ash v. Oppmann, 199 111. App. 573; Berry v. Hewitt, 210 111. App. 170; Calvin v. Post Mtge. & Loan Co., 122 N. E. 454, 225 1ST. Y. 510, rev judg., 159 N. Y. Sup. 361, mot. to am. den., 123 N. E. 860; Hartman v. Selling, 189 P. 887, Or. Sup. . See also Sec. 536. Where the contract makes the right to commissions dependent upon consummation, a broker can not recover commissions un- less the contract has been consummated and the money paid. Lindley v. Fay, 119 Cal. 239, 51 P. 333 ; Bollard v. Shea, 121 111. App. 135; Cremer v. Miller, 56 Minn. 52, 57 N. W. 318; West v. Stoeckel, 6 Ohio Dec. (Eep.), 1082; 10 Am. L. E. 309; Reichard v. Wallach, 91 N. Y. S. 347; Bishop v. Averill, 17 Wash. 209, 49 P. 237, 50 P. 1024; Power v. Kane, 5 Wis. 265; Mills v. Hays, 71 Pa. Super. Ct. 523. There is authority to the effect that a broker's right to com- missions is not defeated because the principal is unable to com- ply with the contract, as where independent of the broker he has previously sold the property. Lane v. Albright, 49 Ind. 275 ; Gregor v. McKee, 43 N. Y. S. 486, 18 Misc. 613 ; Levy v. Rathe, 39 N. Y. S. 1057, 17 Misc. 402; Woodall v. Foster, 91 Tenn. 195, 18 S. W. 241. In later New York cases the doctrine has undergone a revi- sion, on the ground that the owner may sell his premises at any time and to any customer who is willing to buy upon his terms, and that commissions may not be collected for customers produced after the premises have been sold. Hodge v. Appellees, 107 N. Y. S. 170, 122 App. Div. 437; Ettinghoff v. Harowitz, 100 N. Y. S. 1002, 115 App. Div. 571. Compare Sees. 454, 558. A broker employed to secure a loan does not earn his com- missions by merely procuring a lender who offers to make the loan, but who, after acceptance by the borrower, refuses to consummate the transaction. Ashfield v. Case, 87 N. Y. S. 649, 93 App. Div. 452; Crasto v. White, 5 N. Y. S. 718, 52 Hun, 473. See also Sec. 466. 394 AMERICAN LAW EEAL ESTATE AGENCY. To entitle a real estate broker to his commissions he must produce a person who actually purchases the property by complying with the terms agreed upon, unless his failure to do so is caused by the fault of the vendor. Richards v. Jack- son, 31 Md. 250; Briggs v. Howe, 1 Abb. Dec. (N. Y.), 189, 4 Keyes 424; Gurnet v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775; Parker v. Nat. Bdg., etc., Assn., 55 W. Va. 134, 46 S. E. 811; Myers v. Moore, 124 N. W. 187, 85 Neb. 715; Higen- botham v. McKenzie, 129 N. W. 263, 88 Neb. 323; Starbird v. J. H. McShane Timber Co., 142 N. W. 683, 94 Neb. 79 ; Hutch- ings v. McLaughlin, 149 S. W. 833, 149 Ky. 366; Hutchinson v. Plant, 105 N. E. 1017, 218 Mass. 148; Schweld v. Storandt, 143 N. Y. Sup. 161, 157 App. Div. 855; judg. aff., 112 N. E. 1075, 217 N". Y. 637; Heath v. Hoffhines, 152 S. W. 176, Tex. Civ. App. ; Avoid v. Oppenlieimer, 153 N. Y. Sup. 421; Hix v. Tomlinson, 200 S. W. 897, Tex. Civ. App. . A broker employed to effect a sale is not entitld to commis- sions until consummation. Dorrington v. Powell, 52 Neb. 440, 72 N". W. 587; Lyle v. Uni. Land & Inv. Co. (Tex. Civ. App. '95), 30 S. W. 723; Smith v. Sharp (Ala. '09), 50 S. 381. A broker failing to show a completed contract between the seller and the buyer is not entitled to commissions. Reicherd v. Wallach, 91 N. Y. S. 347. A broker who contracted for com- missions to be all over a certain net selling price, required a consummation of the sale to earn commissions. Munroe v. Tay- lor, 191 Mass. 483, 78 N. E. 106. See also Sees. 119, 193, 224, 272, 503. Completion of the contract falls upon the owner after the broker has found a customer ready and willing to buy, where his contract is to find a purchaser. Swigert v. Hawley, 40 111. App. 610, reversed on other grounds, 140 111. 185; McCormick v. Obanion, 153 S. W. 267, 168 Mo. App. 606; Freeman v. Van Wagenan, 101 A. 55, N". J. Sup. . When broker agrees to "secure" an exchange of land within thirty days, he has done his part by bringing the parties together so that his principal could have carried through the deal in such time. Turner v. Watkins, 172 P. 620, Cal. App. . Where a broker employed to sell property on a commission found a prospective purchaser, but was unable to consummate a COMMISSION AND COMPENSATION OF AGENTS. 395 sale, and the owner subsequently sold directly to a third person, who secretly bought for the prospective purchaser, without knowl- edge of either broker or owner, the broker could not recover a commission from the owner on the theory that the third person was the undisclosed agent of the prospective purchaser, since this would result in harm to the innocent owner. Ritch v. Robertson, 106 A. 509, Conn. Sup. . Where a broker furnished one claiming to be ready to pur- chase land at a certain price, and purchaser and owner orally agreed to consummate a sale, and were sent by the broker to a bank to have the contract prepared, and a dispute arose concern- ing the purchase price, and the deal was not consummated, the broker's right to compensation depended on whether the owner or the purchaser was at fault in terminating the deal. McLafferty v. Payne, 215 S. W. 680, Ark Sup. . Sec. 450. Introduction of prospective purchaser. The introduction by a broker of a prospective purchaser to the principal held sufficient to establish a contract of employ- ment. Carroll v. O'Shea, 19 N. Y. S. 374. Introduction to the owner, followed by a sale, entitles the broker to commissions, although the sale is made for a less price and upon different terms. Henry v. Stewart, 185 111. 448, 57 N. E. 190; Dean v. Archer, 103 111. App. 455; Pete v. March, 65 111. App. 482; Hafner v. Herron, 60 111. App. 592, affirmed 165 111. 242, 46 N. E. 211; Gibson v. Hunt (Iowa Sup. '03), 94 N. W. 277; Driesback v. Rollins, 39 Kan. 268, 18 P. 187; Schwartz v. Yearly, 31 Md. 270 ; French v. McKay, 181 Mass. 485, 63 N. E. 1068 ; Desmond v. Stebbins, 140 Mass. 339, 5 N. E. 150 ; Reishus- Reimer Land Co. v. Benner, 91 Minn. 401, 98 N. W. 186 ; Haug v. Haughan, 51 Minn. 558, 53 N. W. 874; Francis v. Baker, 45 Minn. 83, 47 N. W. 452 ; Bailee v. McMaury, 113 Mo. App. 253, 88 S. W. 157 ; Vreeland v. Vetterlein, 33 N. J. L. 247 ; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Lloyd v. Matthews, 51 N. Y. 124; Goodwin v. Brennecke, 47 N. Y. S. 266, 21 App. Div. 138 ; Glentworth v. Luther, 21 Barb. 145 ; Baker v. Thomas, 31 N. Y. S. 993, 11 Misc. 112 ; Van Doren v. Jelleffe, 20 N. Y. S. 636, 1 Misc. 354 ; Turner v. Putnam, 13 N. Y. S. 567 ; Rousch 396 AMERICAN LAW REAL ESTATE AGENCY. v. Loeffler, 18 Ohio Cir. Ct. 806, 6 0. Cir. Dec. 760; Insloe v. Jones, Brightly (Pa.), 76; Haines v. Signer, 9 Phila. (Pa.), 51; Smith v. Sharp (Ala. Sup. '09), 50 S. 381; Beogher v. Clark, 106 P. 39, 81 Kan. 250, 27 L. E. A. (N. S.) 198; Prov. Trust Co. v. Darrough, 78 N. E. 1030, 168 Ind. 29 ; Burdett v. Parish, 172 S. W. 620, 185 Mo. App. 605 ; Ryan v. Walker, 169 P. 417, Cal. App. ; Bal Car Wheel Co. v. Clinic, 104 A. 357, Md. Sup. . A broker is entitled to commissions, although he took no part in the negotiations, where a sale resulted from his introducing a customer to the owner; irrespective of the purchase price, and although the sale was made by the owner. Holland v. Howard, 105 Ala, 538, 17 S. 35; Snyder v. Fearer, 87 111. App. 275; Keeler v. Grace, 27 111. App. 427; Henderson v. Collins, 69 Iowa, 51, 28 N. W. 431; Jones v. Adler, 34 Md. 440; Delta, etc., Land Co. v. Wallace, 83 Miss. 656, 36 S. 263; Timberman v. Craddock, 70 Mo. 638 ; Crone v. Miss. Valley Trust Co., 85 Mo. App. 601; Bass v. Jacobs, 63 Mo. App. 393; Jones v. Berry , 37 Mo. App. 125; Nicholas v. Jones, 23 Neb. 813, 37 N. W. 679 j Butler v. Kennard, 23 Neb. 357, 36 N. W. 579 ; Potvin v. Cur ran, 13 Neb. 302, 14 N. W. 400; Lloyd v. Matthews, 51 N. Y. 124; Gillen v. Wise, 14 Daly (N. Y.) 480, 15 N. Y. St. 367; Hanford v. Shafter, 4 Daly, 243; Ludlow v. Carman, 2 Hilt. (N, Y.) 107; O'Toole v. Tucker, 38 N. Y. S. 969, 16 Misc. 485, affirmed 40 N. Y. S. 695, 17 Misc. 554; Fidelity Ins. Co.'s Ap- peal, 161 Pa. St. 177, 28 A. 1079; Gibson's Est., 3 Pa. Dist 147, 14 Pa. Co. Ct. 241 ; Scott v. Clark, 3 S. D. 486, 54 N. W. 538; Royster v. Magaveny, 9 Lea (Tenn.) 148; Arrington v. Gary, 5 Baxt. (Tenn.), 609; Engelstein v. Barthalomae, 188 111. App. 562; Hamilton v. Davison, 153 S. W. 277, 168 Mo. App. 620; Forbes v. Arizona Parral Mining Co., 135 P. 715, 15 Ariz. 30. The broker who first introduced a prospective purchaser to the owner was held to be entitled to commissions on a sale made through another. Crone v. Miss. Valley Trust Co., 85 Mo. App. 601. A broker is not entitled to compensation for merely intro- ducing a purchaser to the owner, in the absence of a contract of employment, unless his character as agent was known or disclosed at the time. Keener v. Harrod, 2 Md. 63. See also Sec. 68. COMMISSION AND COMPENSATION OF AGENTS. 397 A real estate broker's contract is completed, and he is entitled to compensation, even though he is employed for the purpose of selling, when he has introduced a purchaser, and his principal chooses to waive that requirement and enters into an option con- tract. In such case the courts allow some compensation upon the basis of the amount paid. Nayliew v. Brislin, 108 P. 253, 13 Ariz. 102. Where a sale was made to the person introduced, but at a price lower than that first suggested, because only a portion of the prop- erty was covered in the final transaction, it did not constitute a new deal brought about solely by the owner himself. Burger v. Cole, 194 P. 611, Colo. Sup. . Sec. 450a. Broker entitled to compensation on furnishing name of prospective purchaser to owner. A broker who furnishes the name of a purchaser to the owner, while the former is willing to execute a binding contract, is not chargeable with failure to procure such contract so as to lose his right to compensation. W. T. Craft Realty Co. v. Livernash, 146 P. 121, 27 Colo. App. 1. CHAPTER IV. SECTION. 8ECTION. 461. Effect of representations as to 451b. Sufficient description of property the dimensions of the property as required by statute, offered. 452. Purchaser acting for another. 451a. Owner bound by representation 453. Apportionment. of location of land to purchaser 454. Defeat of broker's right to corn- by his agent. missions Sec. 451. Effect of representations as to dimensions of the property offered. Defendant employed plaintiff to sell a piece of property for her representing to him that it was seventy-six feet in depth. Plaintiff procured a purchaser to whom defendant made the same representations, and on his discovering that the lot was in reality but sixty-six feet deep he refused to com- plete the purchase. Held, that plaintiff was not entitled to commissions. Hausman v. Herdtfelder, 80 N. Y. S. 1039, 81 App. Div. 46 ; Diamond v. Hartley, 55 N. Y. S. 994, 61 N. Y. S. 1022, 38 App. Div. 87, 47 App. Div. 1. See also Sec. 183, 435. In an action by a broker to recover commissions for procur- ing a loan, it appeared that the written portion of the applica- tion for the loan was filled in by the broker, and that he was aware, when defendant signed the application, that defendant was uncertain as to the exact dimensions of the lot on which security was to be given, though the dimensions were stated in the application, and the loan was rejected because the dimen- sions were not correctly given. Held, that inasmuch as the broker was equally responsible with the defendant for not dis- closing the situation to the lender and for their refusal to make the loan, he could not recover. Diamond v. Harley, 61 N. Y. S. 1022, 47 App. Div. 1. Where a vendee refused to complete a contract for the sale of land by reason of an alleged deficiency in quantity, but it was shown that the contract written by one of the vendor's brokers contained a mistaken description "and included land which the vendor did no;t own, without his knowledge and con- 398 COMMISSION- AND COMPENSATION" OF AGENTS. 399 sent, but by reason of the receding of a lake on which the land bordered, the farm contracted to be conveyed actually con- tained more than the number of acres specified, the brokers were not entitled to a commission. Scott v. Gage, 16 S. D. 285, 92 N. W. 37. Where the principal gives the broker a card describing the lot as twenty-three feet wide, and the broker in good faith makes this statement to a prospective purchaser, and the sale falls through because the true width of the lot falls short five inches, the broker was held entitled to recover his commis- sions. Cohen v. Farley, 58 N. Y. S. 1102, 28 Misc. 168; Sullivan v. Brown, 64 S. 455, 67 Fla. 133 ; Schward v. Storandt, 143 N. Y. Sup. 161, 157 App. Div. 855, judg. aff. 112 N. E. 1075, 217 N. Y. 637; Keough v. Mayer, 111 N. Y. Sup. 1, 127 App. Div. 273; Sokolski v. Bleistift, 129 N. Y. Sup. 26. This conflicts with other decisions in the same jurisdiction. Hausman v. Herdtf elder, 80 N. Y. S. 1039, 81 App. Div. 46; Diamond v. Hartley, 61 N. Y. S. 1022, 47 App. Div. 1. Where a real estate broker procures a purchaser of land at the agreed price, and the owner sells to him; on discovering that the land does not contain the supposed number of acres the broker is entitled to his commissions at the agreed rate on the latter sum. Hoefling v. HaUeton, 84 Tex. 517, 19 S. W. 689. On the other hand, another court holds, where the terms of sale are fixed by the vendor, in accordance with which the broker undertakes to produce a purchaser, and upon the procurement of a purchaser, the vendor voluntarily reduces the price of the property, or the quantity, or otherwise changes the terms of sale as proposed to the broker, so that a sale is made, or terms or conditions are offered which the proposed buyer is ready and willing to accept, the broker will be entitled to his commis- sions at the rate specified in his agreement with the principal. Steivart v. Mather, 32 Wis. 344. Compare Bowman v. Hart- man, 27 0. Cir. Ct. 309. Contra, Sec. 422. In an action by a real estate agent to recover commissions earned, on the ground that the purchaser refused to take the property on account of false representations of the length of the lot, a verdict for defendant is clearly right, where it appears that the purchaser knew the exact length of the lot 400 AMERICAN LAW SEAL ESTATE AGENCY. before he agreed to purchase. Sloman v. Bodwell, 24 Neb. 790, 40 N. W. 321. The same is true where the broker knew the size of the lot. Eeough v. Meyer, 111 N. Y. S. 1, 127 App. Div. 273. Where plaintiff agreed with defendant to procure for him a person who would negotiate for the purchase of his property, and he did procure such a person, and negotiations were en- tered into and carried on, but resulted in a sale of a less amount of property than was contemplated in the agreement under which plaintiff undertook to procure such purchaser, he was entitled to recover commissions on the quantity sold. Bowman v. Hartman, 27 0. Cir. Ct. 309. Compare Stewart v. Mather, 32 "Wis. 344. Broker entitled to commission where sale was defeated by misrepresentation made to the purchaser by an employe of the seller. Hugill v. Weekley, 64 W. Va. 210, 61 S. E. 360, 15 L. R. A., N. S. 1262. A real estate broker employed to divide a tract into lots of specified dimensions, and sell the same for a commission in ex- cess of the specified sum, may not divide the tract into lots of different dimensions, where it is impracticable to divide but into lots of the specified dimensions, and where the owner refuses to permit the division, the broker may not recover commissions. Hutchings v. NcLaugJilin, 149 S. W. 833, 149 Ky. 366. Where a seller and purchaser entered into a written contract, whereby the seller agreed to convey the property in consideration that the purchaser would convey to defendant other property de- scribed as being of certain dimensions, more or less; held, plain- tiffs were entitled to commissions, notwithstanding the purchaser and seller were mutually mistaken as to the dimensions of the property to be conveyed by the purchaser. Regelin v. Conran, 184 111. App. 570. Where a vendor of land signed, at the request of the broker, a memorandum describing the property to be sold, and refused to sign a contract varying that description, he was not bound to prepare and present another contract which he would sign, the memorandum affording the broker a sufficient description. Ab- bott v. Lee, 85 A. 526, 86 Conn. 392. COMMISSION AND COMPENSATION OF AGENTS. 401 Sec. 451a. Owner bound by representation of location of land to purchaser by his agent. Purchaser of land could rely upon the representations of the seller's agent as to the true location of the land, such representa- tions being within the ordinary scope of the authority of real estate brokers. Firebaugli v. Bentley, 130 P. 1129, 65 Or. 179. Sec. 451b. Sufficient description of property as required by statute. Transaction of broker to sell real estate, required by Civil Code, Sec. 1624, subd. 6 to be in writing; held, to sufficiently describe the property, stating county, street and road, with acreage, and a specific description of the character of improvements thereon. Anderson v. Wilstrup, 168 P. 1150, Cal. App. . Sec. 452. Purchaser acting for another. The fact that the purchaser secured by the real estate broker was acting in behalf of another, does not affect the broker's right to a commission, if the purchaser was able, ready and willing to buy on the terms authorized by the principal, and no binding written contract of sale is required. Gelott v. Ridge, 117 Mo. 553, 23 S. W. 882. See also Sec. 487. Failure of a broker to disclose to the vendors that the pur- chaser was acting as the agent for an undisclosed principal, does not affect the broker's right to commissions, the purchaser being financially able to carry out his contract, so that the vendors are not injured. Lawlcr v. Armstrong (Wash. Sup. '09), 102 P. 775. Sec. 453. Apportionment. Where the evidence shows that defendant's contract to pay plaintiff certain commissions for the sale of lands is either a joint contract with that of other owners of the land or his indi- vidual contract, the court properly refused to charge that de- fendant is only liable for his share of the commission to the extent of his individual interest. Their liabilities can not be apportioned. Mousseau v. La Roche, 80 Ga. 568, 5 S. E. 780. 402 AMERICAN LAW REAI, ESTATE AGENCY. Sec. 454. Defeat of broker's right to commissions. A real estate agent who carries on the negotiations between the parties and finally brings them together, is entitled to his commissions, though the trade is eventually effected by the owner himself or by a third person acting for him. Larson v. Thoma (Iowa Sup. '09), 121 N. W. 1059; Scott v. Patterson, 53 Ark. 49, 13 S. W. 419; Hancock v. Stacey (Tex. Civ. App. '09), 116 S. W. 177; Howe v. Werner, 1 Col. App. 530, 44 P. 511 ; Gresham v. Connelly, 114 Ga. 906, 41 S. E. 42 ; Button v. Renner, 74 111. App. 124 ; Ellis v. Dunsworth, 49 111. App. 187 ; Gibson v. Hunt (Iowa Sup. '03), 94 N. W. 277; Hubbard v. Letter, 145 Mich. 387, 108 N. W. 735, 13 D. L. N. 477; Hedden v. Shepherd, 29 N. J. L. 334; Somers v. Westcott, 66 N. J. L. 551, 49 A. 462; Woolley v. Loew, 80 Hun, 294, 30 N. Y. S. 86; Carroll v. Pettit, 67 Hun, 418, 22 N. Y. S. 250; Chilton v. Butler, 1 E. D. Smith (N. Y.) 150; Esmond v. Kingsley, 3 N. Y. S. 696; Lynch v. McKenno, 58 How. Pr. (N. Y.) 42; Keys v. Johnson, 68 Pa. St. 42 ; Sylvester v. Johnson, 110 Tenn. 392, 75 S. W. 923; Van Tobel v. Stetson, etc., Mill Co., 32 Wash. 683, 73 P. 788; Day v. Porter, 161 111. 235, 43 N. E. 1073; Church v. Dunham, 14 Idaho, 776, 96 P. 203, 205; Jennings v. Trumin, 52 Ore. 149, 96 P. 874; Masters v. Hunt, 192 S. W. 219, -- Tex. Civ. App. ; Regner v. Mackrill, 164 N". W. 335, Iowa Sup. ; Ritch v. Robertson, 106 A. 509, Conn. Sup. ; Bauer v. Crew, 221 S. W. 936, Tex. Civ. App. . After the principal and the customer found by the broker agree uponi terms, the broker's right to a commission can not be defeated by the principal's transferring the property indirectly by a deed to a third person who reconveyed to the broker 's customer. Williams v. Bishop, 11 Colo. App. 378, 53 P. 289; Barnett v. Gluting, 3 Ind. App. 415, 29 N. E. 154, 927 ; Steidl v. McClymonds, 90 Minn. 205, 95 N. W. 906; Burke v. Cogs- well, 39 Minn. 344, 40 N. W. 251 ; Oarvin v. Abels-Gold R. Co., 110 N. Y. S. 582, 126 App. Div. 329 ; Martin v. Fegan, 88 N. Y. S. 472, 95 App. Div. 154 ; Minister v. Benoliel, 66 N. Y. S. 943, 32 Misc. 630, reversed on other grounds, 67 N. Y. S, 1044, 33 M. 586 ; Konner v. Anderson, 66 N. Y. S. 338, 32 Misc. 511 ; Fox v. Byrnes, 52 N. Y. Super. Ct. 150. Compare Sec. 425a. COMMISSION" AND COMPENSATION OF AGENTS. 403 Nor by an agreement declaring the sale off. O'Neill v. 'Printz, 115 Mo. App. 215, 91 S. W. 174. In order to defeat the broker's right to a commission, the principal must have substantial ground for refusing to complete the transaction, and have done nothing to estop setting it up. Alabama Loan Co. v. Deans, 94 Ala. 377, 11 S. 17; Fiske v. Soule, 87 Cal. 313, 25 P. 430; Cawker v. Apple, 15 Colo. 141, 25 P. 181; Peabody v. Dewey, 51 El. App. 260, affirmed 153 111. 657, 37 N. E. 977, 27 L. R. A. 322 ; Indiana Ber. Asp. Co. v. Robinson, 29 Ind. App. 59, 63 N. E. 797 ; Felts v. Butcher, 93 Iowa, 414, 61 N. W. 991; Hayden v. Grillo, 35 Mo. App. 647; Bailey v. Chapman, 41 Mo. 536 ; Hartford v. M cGillicuddy , 103 Md. 224, 68 A. 860; Carpenter v. Bynders, 52 Mo. 278; Blaydos v. Adams, 35 Mo. App. 526 ; Goodson v. Embleton, 106 Mo. App. 77, 80 S. W. 22; Finke v. Menke, 67 N. Y. S. 954, 33 Misc. 769; Ernst v. Loeb, 108 N. Y. S. 631; Kirwan v. Barney, 61 N. Y. S. 122, 29 Misc. 614; Friend v. Jetter, 43 N. Y. S. 287, 19 Misc. 101; Delaplane v. Turney, 44 Wis. 31; Greenwald v. Rosen, 113 N. Y. S. 764, 61 Misc. 260; Becker v. Holleson, 198 ill. App. 180; Bruce v. Meserve, 117 N. E. 830, Mass. Sup. . The fact that the principal does not own the property which he employs the broker to sell does not defeat the broker's right to compensation on procuring a purchaser. Smith v. Schiele, 93 Cla. 144, 28 P. 857. Where, at the date of the contract of employment the principal had only an option on the land, or for any other reason can not avail himself of the offer procured by the broker. Monk v. Parker, 180 Mass. 246, 63 N". E. 793; Koslove v. Dittmeier, 203 S. W. 499, - - Mo. App. . False representations of the broker concerning the property which he was negotiating to sell do not defeat his right to commissions where it appears that the purchaser, under the contract of sale, made independent inquiries as to the subject of the representa- tions. Friend v. Jette, 41 N. Y. S. 560, 18 Misc. 368. Where a principal made false representations that defeated a sale made by the broker, this did not deprive the broker of his commissions. Glentworth v. Luther, 21 Barb. (1ST. Y.), 145. Compare Crockett v. Grayson, 98 Va. 354, 36 S. E. 477. See also Sec. 313. A vendor can not escape liability to the broker for commis- sions by himself completing a sale to a purchaser with whom 404 AMERICAN LAW REAL ESTATE AGENCY. the broker had been negotiating, by including in the sale other lands in addition to those the broker was employed to sell. Ransom v. Weston, 110 Mich. 240, 68 N. W. 152. Where a broker is employed to sell land, and when his negotiation is nearly finished the owner limits the time within which a sale must be made and notice be sent to him, and the agent makes a sale without delay and sends notice to the principal within the time limited, that being all that was required of the broker under the contract, the miscarriage of the notice does not de- prive the agent of his commission. Gibbons v. Sherwin, 28 Neb. 146, 44 N. W. 99. Where the authority conferred on the broker to sell lands is limited in time, the agent will be en- titled to his commission if within that time he procures a pur- chaser with whom his principal enters into a binding contract of sale and purchase, although the conveyance of the lands is not made until after the time allowed has elapsed. Crowley Co. v. Meyers, 69 N. J. L. 245, 55 A. 305; Cody v. Dempsey, 83 N. Y. S. 899, 86 App. Div. 335. Defendant placed his ranch in plaintiffs' hands to sell on commission within a specified time; they found a purchaser who paid to defendant part of the purchase money, and ten- dered the balance in checks, which defendant refused; after the time specified had expired, defendant, without returning the partial payment, conveyed the ranch to his father, who conveyed it to the purchaser on payment of the balance of the agreed price, defendant saying at the time that he did not intend to pay plaintiffs any commissions. Held, that the plain- tiffs were entitled to their commissions, the sale being made to their purchaser, and defendant not having repudiated the original contract of sale by returning the money paid upon it. Wilson v. Sturgis, 71 Cal. 226, 16 P. 772. In an action by a real estate agent to recover commissions for trading defendant's house and lot, where it appears that part of the consideration to be paid by the purchaser was a horse, and that defendant objected to the price placed on it, and agreed to take it if a reduction was made, and thereafter, without notice, traded the house and lot to a third person, a verdict for plaintiff is sustained by the evidence. Tubbs v. COMMISSION AND COMPENSATION OF AGENTS. 405 Mackintosh, 31 Neb. 238, 47 N. W. 854; West v. Lynch, 1 City Ct. R. (N. Y.), 225. See also Sec. 434. One who employs a broker to negotiate a sale can not, in an action for commissions, avail himself of the objection that the customer is not able to pay for the premises, if the vendor has accepted the customer as satisfactory and has conveyed the prem- ises to him. Travis v. Graham, 48 N. Y. S. 736, 23 App. Div. 214. Where a principal in an exchange of properties actually receives a good title to the property conveyed to him, he can not defeat an action by his broker for commissions on the ground that his contract of sale was invalid. Sclilesinger v. Jud, 70 N. Y. S. 616, 61 App. Div. 453. Compare Sec. 433. Where the owner enters into a contract authorizing a real estate agent to sell his land on commission, within a certain time, he can not revoke the authority and escape liability to the agent, if he secures a purchaser before the time limited, as the result of efforts commenced before such revocation. Blumenthal v. Goodall, 89 Cal. 251, 26 P. 906 ; Glover v. Hen- derson, 170 Mo. 367, 25 S. W. 175; Stamets v. Dennison, 193 Pa. St. 548, 44 A. 575 ; Harrison v. Angerson, 115 111. App. 226. (There are authorities holding that the owner has power to rescind, subject to the right of the broker to bring an action for breach of the contract.) Where a broker employed to bring about a sale of real es- tate, brought to the owner a responsible purchaser willing to take the premises on the terms outlined by the owner, the broker was entitled to his commissions, although the sale fell through because the owner could not give immediate posses- sion as he had agreed to do. Putter v. Berger, 88 N. Y. S. 462, 95 App. Div. 62 ; Bruce v. Dralce, 70 S. 273, 195 Ala. 236. Where a broker has lands placed in his hands for sale at a certain price, and the proposed purchaser does not want the entire tract, and the broker induces an employe to purchase what remained, and the principal, to escape paying commis- sions, conveys the whole tract to the employe, who conveys to the purchaser the portion he desires, the latter assuming a proportionate amount of the purchase money notes, the broker is entitled to his commissions. Bogart v. McWilliams (Tex. Civ. 406 AMERICAN LAW REAL ESTATE AGENCY. App. '95), 31 S. W. 434; Diamond v. Wheeler, 80 K Y. S. 416, 80 App. Div. 58. The principal can not defeat the broker's right to compen- sation by arbitrary or wanton refusal to consummate the sale. Merriman v. Wickersham, 141 Cal. 567, 75 P. 180; Phelps v. Prusch, 83 Cal. 626, 23 P. 1111; Nielson v. Lee, 60 Cal. 555; Phelan v. Gardner, 43 Cal. 306 ; Millett v. Barth, 18 Colo. 112, 31 P. 769 ; Spalding v. Saltiel, 18 Colo. 86, 31 P. 486 ; Finnerty v. Fritz, 5 Colo. 174; Wolver v. Shandy, 66 111. App. 42; Hecht v. Hall, 62 111. App. 100; McGuire v. Carlson, 61 IU. App. 295; Flood v. Leonard, 44 111. App. 113; Heaton v. Clarke, 122 Iowa, 716, 98 N. W. 597 ; Lewis v. Simpson, 122 Iowa, 663, 98 N. W. 508; Collins v. Padden, 120 Iowa, 381, 94 N. W. 905; Bird v. Phillips, 115 Iowa, 703, 87 N. W. 414; Houston v. Bo- agni, McGloin (La.), 164; Schwartz v. Yearly, 31 Md. 270; Gwinnup v. Sibert, 106 Mo. App. 709, 80 S. W. 589; Reeves v. Vette, 62 Mo. App. 440; Gaty v. Foster, 18 Mo. App. 639; Jones v. Stevens, 36 Neb. 849, 55 N. W. 251 ; Mooney v. Elder, 56 N. Y. 238; Barnard v. Monnott, 1 Abb. Dec. (N. Y.) 108, 3 Keyes, 203, 33 How. Pr. 440 ; Snydam v. Healy, 87 N. Y. S. 669, 93 App. Div. 396; Smith v. Smith, 1 Sweeney (N. Y.), 552; Hayne v. O'Connor, 1 Sweeney (N. Y.), 472, 41 How. Pr. 287; Simpson v. Smith, 36 Misc. 815, 74 N. Y. S. 849; York v. Nash, 42 Ore. 321, 71 P. 59 ; Fisk v. Henare, 13 Ore. 156, 9 P. 322; Haskins v. Lewis, 30 Ohio Cir. Ct. 603; Hunt- emer v. Arent, 16 S. D. 465, 93 N. W. 653 ; McLane v. Goode (Tex. Civ. App. '02), 68 S. W. 707; Magill v. Stoddard, 70 Wis. 75, 35 N. W. 346; Koch v. Emmerling, 63 U. S. (22 How.) 69 ; Greenwood v. Burton, 27 Neb. 808, 44 N. W. 28 ; Bond v. Webster, 128 Wis. 118, 107 N. W. 23; Witherell v. Murphy, 147 Mass. 417, 18 N. E. 215; Herridc v. Maness, 127 S. W. 394, 142 Mo. App. 399; Chandler v. Games-Ferguson Realty Co., 224 S. W. 484, Ark. Sup. . After notice that the broker has a customer, the principal can not sell to another, and thus escape the payment of the commission. Phelan v. Gardner, 43 Cal. 306; Showaker v. Kelly, 21 Pa. Super. Ct. 390; Sullivan v. Hampton (Tex. Civ. App. '95), 32 S. W. 235; Frinck v. Gilbert (Wash. Sup. '09), 101 P. 1088. But see where principal refused offer and sold COMMISSION AND COMPENSATION OF AGENTS. 407 to same party for twice as much, and broker was held not entitled to commissions. Gardner v. Pierce, 116 N. Y. S. 155. See Sec. 15. The refusal of the wife to join in a deed of conveyance is insufficient to excuse the husband and principal for failing to carry out the sale so as to defeat the broker's right to a com- mission for finding a purchaser. Hamlin v. Schulte, 34 Minn. 534, 27 N. W. 301. Goldberg v. Gelles, 68 N. Y. S. 400, 33 Misc. 797; Clapp v. Hughes, 1 Phila. (Pa.) 382. The same rule was applied where the sale failed because the husband and wife could not agree as to a division of the purchase money. Purdy v. Wilson, 130 Mo. App. 150, 108 S. W. 1124. Where a broker found a purchaser his agency closed, and his afterwards taking a retainer from the purchaser to see that the papers were properly executed presented no ground for defeating a recovery of his commissions. Short v. Millard, 68 111. 292. See also Sec. 559. While an agency for the sale of a certain lot was terminated by a sale of the property to one with whom the agent had commenced negotiations, this did not defeat the agent's right to his commissions. Sylvester v. Johnson, 110 Tenn. 392, 75 S. W. 923. Compare Sec. 449. Where, in an action by a real estate broker for compensa- tion for procuring a purchaser, it appeared that a memoran- dum as to the purchase had been made between the principal and the purchaser, calling for the execution of a completed contract at a specified time and place, evidence was admissible as to what occurred at such time and place, showing that the non-execution of the contract was due to the principal. Seid- man v. Banner, 99 N. Y. S. 862, 51 Misc. 10. A broker's right to compensation is not affected by fraudu- lent representations made to the principal by third persons. Heaton v. Clarke, 122 Iowa, 716, 98 N. W. 597. Unless they are in privity with the broker. Thwing v. Clifford, 136 Mass. 482. Where defendant employed plaintiff to sell certain standing timber, and dealt as though he was the owner, he could not defeat the plaintiff's right to commissions on a sale subse- 408 AMERICAN LAW REAL ESTATE AGENCY. quently made to a purchaser found by plaintiff, by showing that at the time plaintiff was employed defendant did not own the land, but procured full title thereto before he sold it to such purchaser. McDonald v. Cabiness, 100 Tex. 615, 98 S. W. 943, affirmed 102 S. W. 721. Subsequent dissatisfaction of the principal with the terms of payment to which she had agreed and on which the broker was authorized to sell the property, or with the terms agreed on with the purchaser found by the broker, if within his au- thority, does not justify the principal in refusing to complete the transaction. Fenn v. Ware, 100 Ga. 563, 28 S. E. 238; Miller v. Earth, 71 N. Y. S. 989, 35 Misc. 372; Hart v. Ehrhardt, 177 111. App. 145. That the principal is ignorant of the efforts of his broker in procuring a customer, does not affect the broker's right to com- missions. Colonial Trust Co. v. Pacific Packing & Nav. Co., 158 Fed. 277, 85 C. C. A. 539; Handley v. Shaffer, 59 S. 286, 177 Ala. 636; Jackson v. Brower, 167 P. 6, 22 N. M. 615; Hill v. Huber, 202 S. W. 785, Tex. Civ. App. . See also Sec. 540. The failure of a prospective purchaser of coal lands to rely upon the owner's representation and the broker employed to find a purchaser that a railway had consented or agreed to construct a branch railroad into such lands, does not defeat the broker's right to his agreed commissions, where, relying upon such repre- sentations, he found a purchaser, and the sale fails because of their inaccuracy. Dotson v. Milliken, 209 U. S. 237, 52 L. Ed. 768. See also Sec. 165. A broker is not entitled to commissions on sales made by the principal, uninfluenced by the broker. Humphries & J. v. Smith, 5 Ga. App. 340, 63 S. E. 248 ; Brady v. M addox, 124 S. W. 739, Tex. Civ. App. ; Morris v. Clark, 80 S. 406, Ala. Sup. ; Harris & White v. Stone, 207 S. W. 443, Ark. Sup. ; Dickinson v. Robinson, 82 S. 398, La. Sup. . See Sees. 142, 169. Where a broker has procured a purchaser for land, and while his agency is unrevoked, and he is still negotiating with a pur- chaser at the owner's stipulated price, the owner sells through an- other broker, the original broker is, nevertheless, entitled to his commissions. Hovey v. Aaron, 113 S. W. 718, 133 Mo. App. 573. Compare Sees. 41, 141, 445. COMMISSION AND COMPENSATION OF AGENTS. 409 Where brokers procured a purchaser from premises listed with them for sale, who was ready, able and willing to buy the premises at the terms named by the owners, and the pur- chaser and owners came to an agreement, the brokers were en- titled to a commission though the premises were not sold be- cause the owners, before the contract was signed, raised the price, which the purchaser would not pay. Sotsky v. Ginsberg, 114 N. Y. S. 114, 120 App. Div. 441. See also Sec. 55. A party can not defeat his obligation to pay real estate com- missions by voluntarily cancelling the contract of purchase and sale obtained by the real estate agent. Myers v. Buell, 142 111. App. 467. Where defendants, real estate brokers, agreed to procure a purchaser for plaintiff's property, and in fact procured a per- son who executed a contract, valid on its face, with plaintiff for an exchange of property, defendants were entitled to their commissions, irrespective of whether the plaintiffs misrepre- sented their property to the purchaser so as to justify him in refusing to carry out the exchange. Lewis v. Mansfield Grain & Elevator Co. (Tex. Civ. App. '09), 121 S. W. 585; Hutton v. Stewart, 135 P. 681, 90 Kan. 602. The fact that the one who was employed to procure a purchaser of real estate violated his contract of employment with a third person engaged in the banking and real estate business did not defeat his right to recover his commissions from the owner on procuring a purchaser. Pomerici v. Rosenbloom, 120 N. Y. S. 756; Kice v. Dugan, 137 S. W. 240, 143 Ky. 676. In an action to recover commissions for a sale of property for which plaintiffs agreed to secure a purchaser, the plaintiffs' pro- posed purchaser would not purchase upon the terms agreed upon between plaintiffs and defendant, though defendant thereafter sold the premises by a different broker to the partner of plaintiffs' proposed purchaser. In the absence of bad faith by defendant in making the sale, plaintiffs could not recover any commissions. Nadler v. Menschel, 110 N. Y. Sup. 384. A real estate broker held not entitled to a commission merely because he conducts negotiations for a particular property which the plaintiff subsequently acquires from another broker after he 410 AMERICAN LAW EEAL ESTATE AGENCY. has discontinued his efforts. J. A. Patterson Co. v. United Gas Imp. Co., 86 A. 852, 239 Pa. 277. A broker seeking to recover commissions under a contract stip- ulating for a commission for urging a third person to purchase property, need not show that his urging was an inducement, or the procuring cause of the sale to the third person, but he may recover on proof that he saw the third person and urged him to buy the property, and that the third person purchased it. Tuf- free v. Saint, 126 N. W. 373, 147 Iowa, 361. Owner who sold to broker's customer held not entitled to de- feat broker's suit for commission on the ground that his con- tract with the buyer was only a conditional one when the suit was begun.. Burdett v. Parish, 172 S. W. 620, 185 Mo. App. 605. Broker who fails to find a purchaser for land within the time limited by his contract with the owner is not entitled to a com- mission, though a sale is subsequently made to the purchaser who negotiated with the broker within such time, provided the owner acted in good faith and did not interfere with the agent's efforts to make a sale within the specified time. Murray v. Miller, 166 S. W. 536, 112 Ark. 227, Ann. Cas. 1916 B, 974. The plaintiff was to procure a purchaser for land owned by the defendant for an agreed compensation, and the plaintiff found a purchaser who made a conditional agreement to buy the land, but by a condition assumed absolutely, the purchaser agreed with defendant to purchase the land through another agent, and, while such agreement for a purchase was pending, plaintiff, in his ac- tion for compensation, levied an attachment on the land, because of which the purchaser refused to close the trade until the attach- ment was released. Held, that having defeated the sale the plain- tiff had no right of action. Rogers v. McMillan, 132 S. W. 853, 62 Tex. Civ. App. 486. Where realty broker is the instrument through which sale has been effected, no artifice, deceit or fraud will deprive him of his commission. Luzzadder v. McCall, 198 S. W. 1144, Mo. App. . In an action by a broker for his commissions against the vendor of property, where there was an agreement between the broker and vendor that, unknown to the purchaser, a certain sum out of the supposed purchase price was to go to such broker, the apparent COMMISSION AND COMPENSATION OF AGENTS. 411 deception of the purchaser does not affect the vendor's liability. titrassheim v. Reuttinger, 198 111. App. 258. Under contract to pay a commission to broker effecting a sale or procuring a purchaser, broker was not entitled to a commis- sion if owner sold the property without his aid following after his failure to effect a sale, though sale was to one whom broker had introduced as prospective purchaser. Ford v. Shaffer, 79 S. 172, La. Sup. . Evidence held to show that the broker was not the procuring cause of the sale of defendant's property to the person to whom he, and many other parties, had mentioned the property, and whom the owner induced to buy it, without knowledge that the broker had spoken to him about the property. Gammell v. Cox, 219 S. W. 745, Ark. Sup. . Brokers are entitled to their commission under a contract au- thorizing them to sell land within one year, where they procured an offer and reported it to the owner, who accepted it before the expiration of the year, though a formal contract of sale was not signed until the year had expired. Chandler v. Gaines-Ferguson Realty Co., 224 S. W. 484, Ark. Sup. . Plaintiff who, at his own solicitation, was given a chance to sell land, with a distinct agreement that he must look to the purchaser for any commission, landowner's sole interest being that net price be a certain amount, plaintiff being informed that he was not a broker, and could not be entitled to any commission, was not entitled to a commission, where parties to whose notice the property had been brought refused to deal with him, and dealt directly with the owner. Hurley v. Randall, 111 A. 530, E. I. Sup. . CHAPTER V. SECTION. SECTION. 455. Deals. 459. Failure of sale by defect in title. 456. Excess in price as compensation. 460. Failure of purchaser to carry out 457. Failure of broker to sell. contract. 458. Failure to consummate contract 460a. Broker employed to purchase of sale. entitled to commission for 458a. Negotiations not constituting a services. contract broker not entitled to 461. Failure of consideration, commission. 462. Forfeitures. Sec. 455. Deals. Where an owner of real estate asks a real estate broker "to get a deal," it is not necessary for the real estate broker to assent in words; if he procures a purchaser he makes a con- tract by performance and is entitled to commissions. Lamb v. Prettyman, 33 Pa. Super. Ct. 190. Evidence was held to show that a contract by which plain- tiff was employed to procure contemplated exchanges of real estate was a severable contract, and that the carrying out of one of the deals entitled the plaintiff to a commission, without regard to the other prospective deals. Goodspeed v. Miller, 98 Minn. 457, 108 N. W. 817. See also Sec. 496. Mechem on Ag. Sec. 634. Where broker merely engaged to secure defendant a deal that suited him, after introducing defendant to one with whom he afterwards concluded the deal, wrote defendant a letter in which he expressed his opinion that there was nothing in the party to whom he had introduced defendant, there is no abandonment of the employment, it appearing that the defendant had previously signed a contract for an exchange of lands. Weidemeyer v. Wood- rum, 154 S. W. 894, 168 Mo. App. 716. Broker employed "to find a deal" ; held, to have fully performed the service for which he was employed by procuring a person ready, willing and able to make a satisfactory exchange of prop- 412 COMMISSION AND COMPENSATION OF AGENTS. 413 crties with his principal. Nooning v. Miller, 165 S. W. 119, 178 Mo. App. 297; Meyers v. Kilgan, 160 S. W. 569, 177 Mo. App. 724. Sec. 456. Excess in price as compensation. A real estate agent employed to sell land for a certain net price is not entitled, in the absence of a contract therefor, to any excess over such price that he may obtain for the land, there being no contract to that effect. Snow v. McFarlane, 51 111. App. 448; Turnley v. Michael (Tex. Civ. App. '91), 15 S. W. 912; Kellogg v. Keeler, 27 111. App. 244. Compare Deming Inv. Co. v. Meyer (Okla. Sup. '07), 91 P. 846, Sec. 290. In an action for the violation of duties due to plaintiff as broker, it appeared that defendant informed plaintiff that he had certain lots for sale at $17,500; the lots had been placed in defendant's hands by E., another broker, with whom they had been placed by the owner, and the price asked by defend- ant was that fixed by the owner; plaintiff refused to buy at that price and offered $13;000; defendant reported the bid to E., who was informed by the owner that he could have the lots at $12,000, without commissions; E. then instructed de- fendant to offer the lots to plaintiff at $14,000, which offer plaintiff accepted, and defendant then procured a contract, and reported that he had bought the property for plaintiff. Held, that the evidence did not show that defendant was em- ployed by plaintiff so as to make him liable for the difference between the price at which the owner was willing to sell and the price asked. Lazarus v. Sands, 27 N. Y. S. 885, 33 N. Y. S. 855, 7 Misc. 282, 12 Misc. 575. See also Sec. 25. Under a contract empowering a real estate broker to sell property for a certain sum, and providing that he should have as commissions all that he could get for the property above the price named, he was entitled to commissions only in the event of procuring a consummation of the sale, and not on procuring the execution of a contract of sale which was never performed. Munroe v. Taylor, 191 Mass. 483, 78 N. E. 106; Murphy v. W. & W. Live Stock Co., 189 P. 857, Wyo. Sup. . See also Sec. 503. 414 AMERICAN LAW REAL ESTATE AGENCY. The owner of land agreed to pay a broker five per cent, com- mission if he found a purchaser who would pay him $3,000; thereafter the owner went away, but before leaving told the broker to consult C, and deal with him in the owner's place ; sub- sequently C authorized a sale for $3,000 net to the owner, agree- ing that the broker might have anything above that; the owner was informed of a sale made for $3,500, the contract calling for a good title, but refused to execute a proper deed. Held, that the broker was entitled to recover $500. Foster v. Taylor, 44 Wash. 313, 27 Pac. 358; Chesbrough v. Vizard Inv. Co., 160 S. W. 725, 156 Ky. 149 ; McKibben v. Wilson, 182 P. 638, Kan. Sup. . Where a broker agreed with the owner of land to sell it, and that all above a certain price should be divided between them, and advised her to sell below the price named after a certain time, on the ground that the lands were not worth more, and effected a sale after the death of the owner for her executor at a price which left nothing, under the agreement with the decedent, to be divided, a claim against the executor for commissions could not be allowed. In re French's Est. f 101 N. Y. S. 734. 51 Misc. 457. Where an owner promised and agreed to pay a broker aa a commission for procuring a tenant, ' ' all you get above $2,000 per year," and the broker rents the premises for five years at an annual rental of $2,200, he was entitled to the excess over $2,000 each year during the life of the lease, and not merely for one year. Goldstein v. D'Arcy, 201 Mass. 312, 87 N. E. 584. See also Sec. 212. Compare Sec. 207. A broker employed to procure a purchaser of real estate, to receive as commissions any sum in excess of $45 per acre, can not recover commissions, where the owner sold the land at $45 per acre, in the absence of a showing that the sale was made in fraud of the broker's rights, though he claimed that he could have sold for $50 per acre. Cook v. Whiting (Iowa Sup. '09), 122 N. W. 835. A broker employed to procure a purchaser willing to pay $16,000 net, for a commission of whatever was obtained in excess of that sum, who procured a purchaser willing to pay $16,500, on the condition that the owner pay to a third per- son as purchaser's agent, for his compensation in the transac- COMMISSION AND COMPENSATION OF AGENTS. 415 tion, two and one-half per cent, thereof, did not comply with the contract of employment and could not recover commissions. Slayback v. Wetzel (Mo. App. '09), 123 S. W. 982. Broker entitled to excess as commission on finding a purchaser ready, able and willing so to do. Hale v. Taylor, 126 S. W. 755, 140 Mo. App. 692 ; Davis-Fisher Co. v. Hall, 148 1ST. W. 713, 182 Mich. 574, L. E. A. 1915 A, 1224. A real estate broker's obligation was fully performed when he procured from a prospective purchaser an enforceable contract to purchase at the agreed price, and it was no concern of the owner, who agreed that the broker should receive all over that amount, that the excess was in the form of fruit that the purchaser agreed should go to the broker rather than money. Sill v. Ceschi. 140 P. 949, 167 Cal. 698. Where an owner of land agreed with a broker that the latter might sell for a given sum net, such agreement authorized the broker to retain all the proceeds above that sum as a commission, but does not entitle him to any commission unless an actual sale is made. Noyes v. Caldwell, 104 N. E. 595, 216 Mass. 525. Where a broker is employed to sell real estate at a stipulated net price, and on certain terms, with an understanding that he shall have all in excess of the net price for his compensation, he is at liberty to enter into a contract to sell the premises with other property for a gross consideration in excess of the owner's net price, provided the proposed purchaser is willing and able to pur- chase at the price and on the stipulated terms, though a part of the consideration in excess of that which was to be paid to the owner consists of stock in a corporation. Smith v. Mellen, 133 K W. 566, 116 Minn. 198. A broker procuring a purchaser for property subsequently con- demned, for a sum in excess of that he was authorized to sell it for, can recover his agreed commission. Tyler v. Seller, 136 N. Y. Sup. 394, 76 Misc. Eep. 185. A broker employed to procure a purchaser for compensation of any sum in excess of price fixed by the principal; held, not to forfeit compensation because he became interested with the pur- chaser in purchasing the land. Martineau v. Hanson, 155 P. 432, 47 Utah, 549. 416 AMERICAN LAW EEAL ESTATE AGENCY. Where a broker is given the sale of land at a net price to the owner, it is necessary, to recover substantial damages, that the customer furnished was able, ready and willing to buy at a cer- tain advanced price, although vendor, by his acts, released him from any obligation to produce a customer. Shapiro v. Benenson, 167 N. Y. Sup. 1004, 181 App. Div. 19. Defendants' general agent S, being authorized by them to sell for $23,000 and retain as compensation any amount received in excess of $23,000, and who, having employed plaintiff to find a customer, S and plaintiff to divide any such excess, the fact that plaintiff was to receive a commission from G, obtained as a cus- tomer after refusing a price of $30,000, and in not affecting de- fendants, did not deprive him of right to recover his commission from them. Springstein v. Lewis, 259 F. 518. Sec. 457. Failure of broker to sell. Where a broker brought a prospective purchaser before the owner of land, and the prospective purchaser, upon being told the price, left without taking any action, the broker was not en- titled to a commission, since he had not furnished a purchaser ready, able and willing to buy on the seller's terms. Irines v. Bogan, 41 Colo. 9, 91 P. 1108; Oeorgeon v. John, 174 K Y. Sup. 145. Broker authorized to procure a purchaser for a wife's realty at $7,000, and for her husband's grocery business conducted therein for $2,000, who found two persons who agreed to pay $8,500 for both, offers refused by the husband, after which broker remained inactive for weeks, when wife sold her realty for $7,000 and her husband sold his grocery business for $2.000 to the one who had offered $8,500 for both store and premises, in the ab- sence of bad faith broker could not recover commission from the wife. In re Nielson, 127 N". E. 514, Mass. Sup. . Sec. 458. Failure to consummate contract of sale. To entitle a real estate broker to his commission, he must produce a person who actually purchases the property by com- plying with the terms agreed upon, unless his failure to do so is caused by the fault of the vendor. Richards v. Jack- son, 31 Md. 250; Fox v. Regan, 240 111. 391, 88 K E. 974; COMMISSION AND COMPENSATION OP AGENTS. 417 Briggs v. Eowe, 1 Abb. Dec. (N. Y.) 189, 4 Keyes, 424; Bur- nett v. Eddling, 19 Tex. Civ. App. 711, 48 S. W. 775; Parker v. Nat Bdg., etc. Assn., 55 W. Va. 134, 46 S. E. 811; Hugitt v. Weekly, 64 W. Va. 210, 61 S. E. 360, 15 L. R. A. (ET. S.) 1262; Hamberger v. Thomas (Tex. Civ. App. '09), 118 S. W. 770; Dotson v. MiHikin, 209 F. S. 237; Bankin v. Grist, 129 S. W. 1147, 61 Tex. Civ. App. 484; Crum v. Slade & Bassett, 154 S. W. 351, Tex. Civ. App. ; Cligg v. Meyer, 134 S. W. 386, - Tex. Civ. App. ; Young v. Whitaker, 150 P. 972, 46 Utah, 474; Hayden v. Ashley, 150 P. 1147, 86 Wash. 653; Speer v. Benedum Trees Oil Co., 86 A. 695, 239 Pa. 189; De Perow v. Groomes, 42 App. D. C. 287; Cunningham v. Friendly, 140 P. 989, 70 Or. 222, den. re. 139 P. 928, 70 Or. 222 ; Husak v. May- wald, 185 111. App. 479; Bleiswess v. McCurdy, 180 P. 403, Wash. Sup. ; Olan v. Ducharme, 106 A. 777, Vt. Sup. ; Oregon Home Builders v. Montgomery Inv. Co., 184 P. 487, Or. Sup. ; Harris v. Warmack, 101 S. E. 713, Ga. App. ; Laird v. Elliott, 219 S. W. 499, Tex. Civ. App. . See also Sec. 536. Where the owner of land authorized real estate agents to sell land purchased by him, and informed them that he had no deed for the same, but held it under a contract, and the agents made a contract for a sale of the land, but the pur- chaser refused to complete, because the vendor had only a con- tract of purchase, there being no other defect in the title, it was held that the agents were not entitled to recover the agreed commissions on the sale, as it proved abortive without any fault on the part of their principal. Hoyt v. Shipherd, 70 111. 309. Compare Sec. 33. Where a broker was employed to sell a whole tract of land, or a part thereof, and after negotiations the broker failed to make a sale, and an attempt was made to discharge him, but he continued his negotiations, subsequently the owner sold a portion of the tract to a person with whom the broker had prior negotiations ; the owner was held liable to pay the broker a proportionate commission. Diamond v. Wheeler, 80 N. Y. S. 416, 80 App. Div. 58; Bogart v. McWilliams (Tex. Civ. App. '95), 31 S. W. 434. 418 AMERICAN LAW REAL ESTATE AOENOY. A broker's contract for a commission on a sale of an entire tract of timber land; held, not to entitle him to a commission on a sale of a portion of the tract. Wilson v. Rafter, 174 S. W. 137, 188 Mo. App. 356. Broker not entitled to a commission for sale of a part of a tract when employed to sell the whole. Martin v. Crumb, 142 ST. Y. Sup. 1096, 158 App. Div. 228, rear, and app. to Ct. App. den., 143 N. Y. Sup. 1130, 158 App. Div. 939, judg. rev., Ill N. B. 62, 216 N. Y. 500. A broker employed to procure a loan on real estate is not entitled to compensation merely because a lender was found who agreed to make the loan, subject to the conditions, "title, etc., being found ultimately satisfactory," but who declined to make the loan after an examination of defendant's title to the real estate. Chambers v. Ackley, 91 N. Y. S. 78; Gatling v. Central Spar Verein, 73 N. Y. S. 496, 67 App. D. 50. An owner employed a broker to procure a purchaser for described real estate for a specified sum at a specified com- mission; the broker procured a third person to make an offer, which the owner accepted, and the two entered into a contract for an exchange of properties; the broker testified that the owner stated that if he could get a third person to agree to give a specified number of lots and a mortgage back of a specified sum the owner would pay a specified sum for com- missions: the agreement for an exchange was not carried out because of a defect in the title of the third person, which the broker attempted to cure. Held, that the broker was not entitled to commissions, none being earned unless a transfer was made. Keating v. Healey, 147 Mich. 279, 110 N. W. 943, 13 D. L. N. 1035. Plaintiff, employed to sell real estate, procured a purchaser who executed a contract to purchase, and plaintiff and the owner at the same time entered into a written agreement, which pro- vided that plaintiff would accept $500 as a full commission, which amount should be paid from the first $500 received by the owner after the first $5,000 had been paid. The contract was never car- ried out because the owner could not give a good title. Held, that the agreement established a time before which the plaintiff was not entitled to compensation, and not a time beyond which COMMISSION AND COMPENSATION OF AGENTS. 419 he was not required to wait for it, so that he could not recover. Such agreement superceded the ordinary rule that a broker earns his commission when he has procured the execution of a valid agreement for sale. Clark v. Horsy (Mass. Sup.), 105 N. E. 222, 217 Mass. 485. Compare Sees. 460, 501, 1118. See also Sec. 503. An owner employed a broker to procure a purchaser of his land; the broker procured a purchaser who contracted with the owner for the purchase; the purchaser was unable to pay the cash necessary to consummate the sale, and he depended on a third person with whom he had contracted to buy the property, and who was to furnish the cash to make the first payment; the sale was not made, and the owner cancelled the contract. Held, that it was not necessary for the broker, in order to recover his commissions, to prove that the purchaser was able, independently of the third person, to make the cash payment, and if the purchaser could have procured the money from the third person, and if the failure to complete the sale resulted from the fault of the owner, the commission was earned. Clark v. Wilson, 41 Tex. Civ. App. 450, 91 S. W. 627. Compare Fox v. Demargo Land Co., 37 Colo. 203, 86 P. 344; Harmon v. Enright, 107 Mo. App. 560, 81 S. W. 1180; Butler v. Baker, 17 R. I. 582, 23 A. 1019. A real estate agent executed, in duplicate, a contract of sale in excess of his authority and delivered one copy to the pur- chaser, and sent one to the principal with a request that the latter have his wife sign it; the purchaser had no knowledge that there was another copy of the contract, sending at differ- ent times to the agent various propositions for a modification of the contract; the principal knew that the purchaser and the agent were in communication, and the former was charge- able with knowledge that the terms of the contract exceeded the agent's authority. Held, that the principal's failure to communicate with the purchaser was not a ratification. Strong v. Ross, 33 Ind. App. 586, 71 N. E. 918. See also Sec. 618. 420 AMERICAN LAW SEAL ESTATE AGENCY. Broker who merely shows negotiations never ripening into a purchase, or an agreement to purchase, is not entitled to commis- sions. Stevenson v. Bannan, 84 A. 447, 235 Pa. 512. Plaintiff, a real estate broker, was not entitled to a commission in procuring a sale of real estate to defendant, where plaintiff procured from the owner an offer to sell for $10,000, and he was authorized by defendant to offer $9,000, and thereafter a sale was consummated for $9,500, in a transaction with another broker in which plaintiff took no part. OeJim v. Stark, 187 111. App. 185. Broker not entitled to commission where another broker pre- ceded him, and he did not have an exclusive agency, McFarland v. Howell, 143 N. W. 860, 162 Iowa, 110; GrosTcin v. Moore, 94 A. 1057, 249 Pa. 242. Where a broker employed by executors to sell land brought a purchaser able and willing to take the property, but who refused to complete the contract on learning that there was a vendor's lien against the property, the broker, in the absence of fraud or misrepresentation as to the title by the executors, is not entitled to recover compensation. Roberts v. Holland, 134 S. W. 810, Tex. Civ. App. . Under contract for payment of broker's commissions when pay- ments were made by purchaser, which were never made to vendor ; held, not liable because of extensions of time to purchaser, or be- cause broker had no notice of such extensions. Prince v. Selby Smelting & Lead Co., 170 P. 1075, Cal. App. . Plaintiff realty brokers, who had made with the owners of land a valid contract to sell it for a commission, can not recover in the total absence of testimony to show that they found or pro- duced a purchaser at any price. Swing v. Bond, 215 S. W. 934, - Ky. Ct. App. . When commissions are based on the amount "received" by the owner, a failure to sell the land, without fault of the owner, pre- vents recovery of any commissions. Lee v. Greenwood Agency Co., 86 S. 449, Miss. Sup. . COMMISSION AND COMPENSATION OF AGENTS. 421 Sec. 458a. Negotiations not constituting a contract, broker not entitled to commission. Broker employed to procure another to undertake the sale of a tract of land; held, not entitled to commissions, because the negotiations between the principal and said other party did not constitute a contract. Jameson v. U. S. Farm Land Co., 206 F. 889, 124 C. C. A. 549, re. den., 210 F. 885, 127 C. C. A. 495. Brokers authorized to sell at a certain price and promised a certain amount as compensation if they procured a purchaser, are not entitled to a commission, though one with whom they had negotiations ending in failure, after abandoning the idea of buy- ing on any proposition made through them, was, by a friend and the owner, persuaded to enter into negotiations with the owner, which resulted in his buying at a reduced price agreed on by them. Swain v. Pitts, 82 S. 305, Miss. Sup. . Sec. 459. Failure of sale by defect in title. A contract of employment may be so drawn as to deprive the broker of the right to a commission, if the transaction should fall through because of a defect in the principal's title. Louisville, etc. R. Co. v. Shepard, 126 Ala. 416, 28 S. 202 ; Clark v. Hovey, 105 1ST. E. 222, 217 Mass. 485; Chas. Somers Co. v. Fix, 134 P. 932, 75 Wash. 233; Slade & Bassett v. Crum, 193 S. W. 723, Tex. Civ. App. ; Genatt v. Robinson, 165 N. Y. Sup. 464. Sec. 460. Failure of purchaser to cany out the contract. / If the principal and the customer found by the broker en- ter into a valid contract, and the purchaser fails to make the deferred payments and surrenders possession to the vendor, the broker is not deprived of his right to a commission for making the sale. Shainwald v. Cady, 92 Cal. 83, 28 P. 101; Halleck v. Hinckley, 19 Colo. 38, 34 P. 479 ; Lester v. Norton, 43 Conn. 219; Moss v. Wren (Tex. Sup. '08), 118 S. W. 149; Friestedt v. Dietrich, 84 111. App. 604; Jenkins v. Hollings- worth, 83 111. App. 139; Greene v. Hollingshead, 40 111. App. 195 ; McConaughy v. Mahannah, 28 111. App. 169 ; Love v. Miller, 53 Ind. 294; Micks v. Stevenson, 22 Ind. App. 475, 51 422 AMERICAN LAW EEAL ESTATE AGENCY. N. E. 492; Pearson v. Mason, 120 Mass. 53; Love v. Owens, 31 Mo. App. 501; Lanney v. Healey, 56 Neb. 313, 76 N. W. 558; Sedbury v. Fidelity, etc., Ins. Co., 205 Pa. St. 234, 54 A. 898; Hippie v. Laird, 189 Pa. St. 472, 42 A. 46; Bach v. #me- ric/i, 35 N. Y. Super. Ct. 548; Heinrich v. .Kern, 4 Daly (N. Y.), 74; T/wzw v. Philbreck, 74 N. Y. S. 856, 36 Misc. 829; Rosenberg v. Smith, 55 N. Y. S. 528, 25 Misc. 774; Davis v. Dawson, 194 S. W. 15, Ark. Sup. . See also Sec. 449. Compare Sees. 458, 537. V Where owner listed real estate with a broker for sale, and he failed to procure a purchaser upon owner's terms, but did pro- cure one who entered into a contract directly with the owner on different terms, including lot conveyed to owner as part of con- sideration which was not completed because purchaser had no title to and could not obtain title to lot, the purchaser was not "ready, able and willing" to buy on terms agreed upon by him- self and owner, the broker did not earn any commission upon al- leged sale. Harris v. Warmack, 101 S. E. 713, Ga. App. ; Reder v. Epps, 166 S. W. 747, 112 Ark. 566. Sec. 460a. Broker employed to purchase entitled to commis- sion for services. In an action by a broker for commissions for purchasing real estate, where defendant authorized to pay $27 an acre, and plain- tiff obtained a price of $28, which defendant agreed to pay, and availed himself of plaintiff's services in closing the deal at that price, defendant was liable for the value of the services rendered. Comett v. Wooldridge, 133 S. W. 345, 152 Mo. App. 446. Sec. 461. Failure of consideration. Partial failure of consideration is no defense to an action on a note executed and delivered by the vendee to the broker for a commission for making a sale or exchange of real estate. Wade v. Bishop, 5 Ohio Superior & C. PI. Dec. 625. Defendant executed two notes for $385 each in payment of a commission for selling land, and payable only in the event that the vendee of the land remained on it for one year and made improvements equal in value to the notes; the vendees COMMISSION AND COMPENSATION OF AGENTS. 423 plowed one hundred acres, which increased its value $2.50 per acre, erected buildings, constructed drainage worth $75, and a levee worth $64, but with the consent of defendant, to whom they executed a reconveyance, abandoned the premises before the expiration of a year. Held, that a finding that there was no failure of consideration for the note was proper. Easton Packing Co. v. Kennedy, 131 Cal. 23, 63 P. 130; Webster v. Holmes, 174 Mass. 410, 54 N. E. 872. Where landowners agreed to pay a commission, and to give the broker an exclusive agency to sell their property, in consid- eration of his opening and maintaining a city office, the broker can not recover on the contract where he maintained the city office for only a short time. Whitcomb v. Sayer, 144 P. 922, 82 Wash. 572. Where the landowners agreed to convey to a broker one-fourth of a tract, in consideration of the broker's sale of the remainder, is not entitled to retain the portion conveyed to him. Id. Sec. 462. Forfeitures. ^The plaintiff, a real estate broker, having in his hands cer- tain property of the defendant for sale or exchange, arranged for an exchange with C., and a contract was executed by C. and the defendant, by which each was to take immediate pos- session of the other's property, and on or before a day fixed was to convey his property to the other by warranty deed; and if either should fail to perform, he was to pay the other $500 as liquidated damages; C. failed to perform, without fault on the part of the defendant. Held, that the plaintiff was entitled to his commissions; the defendant having agreed to accept $500 in lieu of performance, would not be allowed to deny as against the plaintiff that that payment was equiva- lent to performance. Leete v. Norton, 43 Conn. 219 ; criti- cized, Rieger v. Bigger, 29 Mo. App. 421 ; Parker v. Estabrook, 68 N. H. 349, 44 A. 484. Contra, Kimberly v. Henderson, 29 Md. 512; Maloney v. Aschaffenburg, 78 S. 761, La. Sup. ; Fuller v. Preston, 191 P. 493, Kan. Sup. . H., a real estate broker, having heard that K. desired to sell certain property, went to his office and informed him that in case he succeeded in negotiating a sale he should expect the 424 AMERICAN LAW EEAL ESTATE AGENCY. usual commissions; afterward H. brought K. and J. together and certain papers were executed whereby they contracted for a sale of the property, with a stipulation that -if either party should fail to comply with the contract, a forfeiture of $1,000 should be paid by the party in default; J. failed to comply with the contract and gave his note for the forfeit money. Held, that H. was not entitled to a commission. Kimberly v. Henderson, 29 Md. 512. Contra, Leete v. Horton, 43 Conn. 219 ; Parker v. Estabrook, 68 N. H. 349, 44 A. 484. A broker is not injured by the cancellation, without his con- sent, of a contract of purchase, and derived from it no cause of action against the vendor, where the broker had agreed with the vendor that he (the broker) should not be entitled to a commission until the purchaser fully completed the transac- tion; the agreed payment was made and a contract of sale executed, but the purchaser defaulted in making the first de- ferred payment, as a result of which the vendor became en- titled, under the contract of purchase, to declare a forfeiture. Seymour v. St. Luke's Hospital, 50 N. Y. S. 989, 28 A. D. 119. Where a purchaser agrees absolutely to buy the property, the broker can not be deprived of the commission because the price is payable in installments where the vendor has the right to declare a forfeiture on default of payment of any installment, exercises the same and retains the payments made. Stewart v. Fowler, 53 Kan. 537, 36 P. 1002; Willes v. Smith, 77 Wis. 81, 45 N. W. 666 ; Betz v. Williams, etc., Land Co., 46 Kan. 45, 26 P. 456. A broker may, by agreement, forfeit his right to a commis- sion in case a purchaser defaults in carrying out his contract. Seymour v. St. Luke's Hospital, 50 N. Y. S. 989, 28 App. Div. 119; Forsyth v. Phelps, 128 P. 778, 2 Cal. App. 133; Where a customer obtained by a broker refuses to carry out the contract of sale entered into with the vendor, the broker does not forfeit his right to a commission by the fact that, on such refusal, he procures another customer and states to his prin- cipal that he expects no commission on the previous sale. Beach v. Emerich, 35 N. Y. Super. Ct. 548. COMMISSION AND COMPENSATION OF AGENTS. Where a contract for the purchase of land accorded to the purchaser the right to "back out," on paying a forfeiture, the vendor can not recover damages from the agents on ac- count of their having, by false representations, induced the purchasers to forfeit the contract. Hetzler v. Morrell, 82 Iowa, 562, 48 N. W. 938. If an agent or broker employed to transact a particular business is guilty of bad faith to his principal, he thereby forfeits his right to commissions. Bunn v. Kerch, 214 111. 259, 73 N. E. 419. The right of one employing a broker to procure a purchaser for his land to recover from the broker the forfeit money paid by the intending purchaser failing to complete the purchase is not affected by a custom that forfeit money belongs to the broker, the owner not contracting with reference thereto. M. L. Chambers & Co. v. Herring (Tex. Civ. App. '05), 88 S. W. 371. An agent employed by A. and B. to purchase land, made a purchase and took a conveyance to himself, and afterwards obtained from A. his interest in the land. Held, that B. did not, by neglecting to pay his share of the purchase money at the stipulated time, forfeit his right to a conveyance from the agent. Hutchinson v. Hutchinson, 4 Desau. (S. C.) 77. Compare First Panic v. Bissell, 2 McCrary (U. S.), 73. Compare Sec. 368. That contract of sale is cancelled by consent of parties; held, not to affect the right of broker employed by vendor to compensa- tion. Reasoner v. Yates, 134 N. W. 651, 90 Neb. 757. Under Code Pub. Civ. Laws, Art. 2, Sec. 17, a broker who negotiated a contract of sale, which was signed by both vendor and purchaser, is entitled to his commission, though the vendor dismisses his suit to compel specific performance by the purchaser on payment of a consideration by the purchaser. North Ave, Cassino Co. of Balti. City v. Ferguson, 100 A. 628, 130 Md. 376. Under contract to sell vendor's land, "one-half down, and the balance in five equal annual payments," a broker is not entitled to commission upon vendor's refusal to sign and seal contract under which purchaser could refuse to complete the purchase by forfeiture of $100 for non-compliance, such being an option con- tract and incapable of specific performance. Cali. Land & Secur- ity Co. v. Ritchie, 180 P. 625, Cal. App. . 426 AMERICAN LAW REAL ESTATE AGENCY. Where a real estate broker procured a purchaser, secured by him to enter into a contract with the principal for the sale of certain land, that the contract provided for a forfeiture, as liqui- dated damages, in case of non-performance on the purchaser's part, deprived the broker of his right to commission upon the purchaser's refusal to consummate the decree, without the fault of either the broker or his principal, although the principal was at liberty to waive his right to specific performance of the con- tract and accept the forfeiture as compensation for its breach. La Prelle v. Brown, 220 S. W. 151, Tex. Civ. App. . Where landowner obligated himself to pay an ordinary com- mission to a real estate broker to procure a purchaser of his premises, and the broker procured a purchaser, the mere fact that the owner thereafter, believing that the price of the property was liable to advance, secured a release from his contract of sale by giving the purchaser a substantial amount of money, was no ground for a claim on the part of such owner that the broker's demand for his agreed compensation was inequitable and extor- tionate. Gardner v. Buechler, 111 A. 589, Conn. Sup. . ^JL Under a contract obligating defendants to procure within three days a three-year lease, for a specified rental, with the option of two additional years, or to return to plaintiffs the sum of $250 paid by them, plaintiffs could recover the $250, where the lease- hold instrument presented to plaintiffs was for three years only, with no provision for the additional two years, notwithstanding evidence that the lessors were willing to give the two years' exten- sion, but not to embody such provision in the written lease. Ver- non v. Antill, 194 P. 806, Wash. Sup. . CHAPTER VT. SECTION. 463. Financial conditions. 464. Financial responsibility of pur- chaser. 465. Finding a purchaser. 466. Gratuities. 467. Goods exchanged for land. 468. Broker entitled to commissions in stock of insurance company. 469. Broker entitled to commissions through sale enjoined. 470. Broker not entitled to full com- missions till price paid. 471. Broker not informing principal of customer defeats commissions. 472. Knowledge of broker that prin- cipal owns but part of property does not defeat commissions. 473. Litigation by third persons does not defeat commissions. 474. Methods of earning commissions by broker. 474a. Broker employed to sell real estate not required to prepare contract of purchase. 475. Broker as middleman may re- cover commissions from each. SECTION. 476. Sale of mine, not within de- scription, defeats commissions. 476a. Broker not performing contract who produces contract to buy asking for abstract additional. 477. Modification, not assented to by broker, does not defeat. 477a. When told of prospective pur- chaser by broker owner may then raise the price. 478. Modification in broker's presence did not affect. 479. Modification by performing other services modifies right to com- missions. 479a. Owner must satisfy broker's right to commission in one of two methods left to exercise. 480. Broker agreeing to take stock, can not recover in money. 481. Net price to owner, broker does not take excess. 482. Net price to owner, broker sel- ling thereat not entitled to any commissions. Sec. 463. Financial conditions. The fact that the principal cures the defect in his title, does not deprive the broker of his right to a commission, where the principal gave no notice that the defect was cured until six 427 428 AMERICAN LAW REAL ESTATE AGENCY. month's after the customer was procured, at which time the customer refused to make the loan because of changed finan- cial conditions. Clark v. Henry G. Thompson, etc., Co., 75 Conn. 161, 52 A. 720. Sec. 464. Financial responsibility of purchaser. Where the proposed purchaser was, at the time of the sign- ing of the contract of sale, ready to make the payment then due, the broker is not required to show that the purchaser had sufficient funds on hand at that time to make the final payment. Levy v. Ruff, 23 N. Y. S. 1002, 2 Misc. 180 ; McDer- mott v. Mahoney (Iowa Sup.) 106 N. W. 925, affirmed on rehearing, 115 N. W. 32. The fact that a purchaser is insolvent does not defeat the broker's right to a commission, where a cash payment is not required, and the contract of sale contemplates that the ven- dor is to be secured by a bond and deed of trust, which the, purchaser is prepared to deliver. Ross v. Fickling, 11 App. Gas. (D. C.) 442. Where the proposed purchaser admits that he had not the ability to pay the price fixed, his testimony that he was acting in behalf of a syndicate, and that he would have been pre- pared when the time for payment came, to find the money required, does not show his ability to buy. Harmon v. En- right, 107 Mo. App. 560, 81 S. W. 1180; Butler v. Baker, 17 R. I. 582, 23 A. 1019 ; Fox v. .Demargo Land Co., 37 Colo. 203, 86 P. 344; Madden v. Brown, 169 111. App. 456; 8. V. Thompson Co. v. Goldman, 51 Pa. Super. Ct. 632 ; Hicks v. Nor- ton, 155 S. W. 669, Tex. Civ. App. ; Fox v. Cohen, 34 App. D. C. 389. Compare Clark v. Wilson, 41 Tex. Civ. App. 450, 91 S. W. 627. See also Sec. 558. Where a broker, under a general contract of employment to sell real estate, obtained a purchaser satisfactory to his principal, who made an enforceable contract of sale, without being induced to do so by any representations of the broker as to the purchaser's responsibility, and without any bad faith on the broker's part, the latter was entitled to commissions, though, without the principal's fault, the vendee failed to perform the contract, solely because of the lack of sufficient COMMISSION AND COMPENSATION OP AGENTS. 429 financial responsibility at the time the contract was executed. Alt v. Dosher, 92 N. Y. S. 439, 102 App. Div. 344, affirmed 186 N. Y. 566, 79 N. E. 1100; Fox v. Ryan, 240 111. 391, 88 N. E. 974; Glade v. Esatern III Min. Co., 129 Mo. App. 443, 107 S. W. 1002; Brand v. Nagle, 107 N. Y. S. 156, 122 App. Div. 490; Lombard v. Sills, 157 S. W. 93, 170 Mo. App. 555; Button v. Stewart, 135 P. 681, 90 Kan. 602 ; Gransbury v. Sater- bok, 133 N. W. 851, 116 Minn. 339; Seidel v. Walker, 173 S. W. 1170, Tex. Civ. App. ; Root v. Grerdwohl, 128 P. 418, 20 Cal. App. 139; Ga. Iron & Coal Co. v. Rogers, Brown & Co., 77 S. E. 213, 12 Ga. App. 429; Brink v. Goodelle, 138 N. Y. Sup. 1035; Hopkins v. Settles, 149 P. 890, 46 Okl. 801; Harnwell v. J. D. Arnold & Co., 193 S. W. 506, Ark Sup. ; Union v. Johnson, 94 S. E. 945, W. Va. Sup. . Compare Dotson v. Millikin, 27 App. Cas. (D. C.), 500. See also Sec. 192. The broker must show that the purchaser is able to make the exchange, and this ability is not proved by the mere pro- duction of deeds on his part, without some showing that he also had title to the properties he was willing to deed. His ability does not depend upon general financial standing, but upon his being the owner of the land it was proposed to ex- change. Herscher v. Wells, 103 111. App. 418. Where a principal accepts a purchaser found by his broker, without questioning his ability to perform, and the sale fails of consummation by the principal's own fault or failure to make good his offer, the burden is on him, in order to defeat the broker's right to compensation, to show the purchaser's want of financial ability. Dotson v. Milliken, 27 App. (D. C.) 500. Compare Alt v. Doscher, 92 N. Y. S. 439, 102 App. Div. 344 ; Glade v. Eastern 111. Min. Co., 129 Mo. App. 443 ; Brand v. Nagle, 107 N. Y. S. 156, 122 App. Div. 490. See also Sees. 192, 499. In an action for a broker's commissions, evidence concern- ing arrangements made by the purchaser procured for funds with which to complete the purchase, and the financial ability of the concern from which funds were to be secured was ad- missible. Leuschner v. Patrick (Tex. Civ. App. '07), 103 S. W. 664; Czarnowski v. Holland, 5 Ari. 119, 78 P. 890; Clark 480 AMERICAN LAW REAL ESTATE AGENCY. v. Wilson, 41 Tex. Civ. App. 450, 91 S. W. 627 ; Fox v. Demargo Land Co., 37 Colo. 203, 86 P. 344. Slight evidence of the prospective purchaser's ability to pay for the land is all that is necessary in an action to recover com- missions, the only fact a refusal of owner to make the sale. Bailey v. Padgett, 70 S. 637, 195 Ala. 203. Where a vendor of land is not influenced by misrepresen- tations of his broker as to the financial condition of his ven- dee, such misrepresentations do not constitute a ground for refusing to pay the broker's commissions. Irwin v. Mowbray, 5 N. Y. S. 430. A broker obtained a customer who contracted for the pur- chase of the property. Before the time fixed for performance the purchaser failed to obtain an extension of time asked for, because of his inability to procure funds. The purchaser, on ascertaining that the broker did not have the deed in his pos- session on the day fixed for performance, tendered the price and demanded the deed. The purchaser induced a bank to make the tender, with the understanding that the identical money would be returned. The tender was made by the bank's clerks. The purchaser, on being subsequently given an op- portunity to purchase on the same terms refused to do so, though the property was worth more than the agreed price. Held, to show, as a matter of law, that the purchaser was not able and ready to comply with the terms of his agreement, defeating a recovery by the broker of his commissions. Little v. Herzinger, 34 Utah, 337, 97 P. 639. It was not necessary, in order to entitle a real estate broker to commissions for land sold, that the purchaser should be able to perform at the time the contract was signed, but only at the time fixed for passing title. Joffe v. Nagel, 114 N. Y. S. 905. A broker employed to procure a purchaser of real estate, who procures a purchaser capable and willing to contract to purchase, and who does not warrant the financial ability of the purchaser, and who is not guilty of any fraud, earns his commissions on the vendor and purchaser entering into a bind- ing contract of sale and purchase, though a sale is not con- summated because of the failure of the purchaser to perform, for COMMISSION AND COMPENSATION OP AGENTS. 431 the vendor takes the responsibility of accepting the proposed pur- chaser, and, in the absence of contract, the broker need not see that the purchase money is paid, nor enforce the contract of sale. Moore v. Irvin, 89 Ark. 289, 116 S. W. 662. After a broker had negotiated a sale of land, and the pros- pective purchaser had been unable to obtain a loan with which to make the first payment, the owner's agent and the pur- chaser declared the deal off. Subsequently the agent gave the broker an extension of time in which to procure the loan of $7,000, to be secured by mortgage on the land, but he was able only to obtain a conditional verbal promise from one per- son to advance $6,500, secured by mortgage on the land, and an indefinite arrangement with a banker to lend $500 on personal security, on the usual terms of bank loans. Held, that he had failed to comply with the terms of the extension, and the agent and purchaser were justified in refusing to proceed further, even if the purchaser was bound by the agent's assent to the extension of time. Jones v. Buck (Iowa Sup. '09), 120 N. W. 112. Where a broker employed to sell property on specified terms to designated persons, effects a sale to them on such terms, he need not, in an action for his commissions, show that they were able to make the purchase. Stouteriburg v. Evans (Iowa Sup. '09), 120 N. W. 59. A real estate broker need not show, in order to recover com- missions, that he produced a purchaser with legal tender in hand, but only that the purchaser was ready, willing and pe- cuniarily able to pay for the property within the time fixed, and it is sufficient if the purchaser has arranged so that the money will be available for payment when the deed is deliv- ered, though part of it is obtained from a mortgage on the purchased property executed contemporaneously with the deed to the purchaser. McCabe v. Jones (Wis. Sup. '10), 124 N. W. 486. Where an offer to exchange certain property contained an agreement binding defendant to pay plaintiff a commission of two and one-half per cent, of the value of defendant's property, in the event the deal was closed, plaintiff's right to such amount, on defendant's subsequent refusal to complete the exchange, did 432 AMEEICAN LAW REAL ESTATE AGENCY. not depend on the fact that the acceptance of the offer by the other party was conditional on the property agreeing with a de- scription contained in the offer, but solely on the readiness and ability of the other party to complete the exchange. Hege v. Hessell (Wash. Sup. '10), 107 P. 375. The rule requiring the purchaser produced by the broker to be "ready, willing and able to purchase," means that such purchaser must possess these qualifications before the broker is entitled to demand that the owner do anything in the matter. Adams v. Hall, 168 111. App. 569. The broker who repeated to the seller, though in good faith, with intent to induce a sale, and with the result of doing so, the false and ridiculous statements of the buyer as to his financial responsibility, is entitled to no commission. Bute v. Williams, 162 S. W. 989, Tex. Civ. App. . Under a broker's contract entitling him to commissions "in case he effects a sale," his right to compensation accrues when a valid contract to purchase is signed, although deed is not executed and delivered. Cain v. Masurette, 162 N. W. 287, 196 Mich. 7. Broker who brings to the principal a purchaser who signed an enforcible contract to buy on owner's terms may recover on con- tract his agreed compensation, though principal is unable or re- fuses to perform, or has so misrepresented the property to broker and purchaser that purchaser does not consummate the contract. Nelson, Lee & Green v. Daly, 163 K Y. Sup. 788. Though a purchaser of realty secured by a broker was ready and willing to make first payment called for by contract when due, his readiness and willingness were not sufficient, he not having made payment, nor offered to do so, to entitle the broker to com- mission, which was to be paid from such first payment. Stelson v. Haigler, 165 P. 265, Colo. Sup. . An unconsummated loan is not "negotiated" when the broker has found a lender ready and willing to advance the money, but the lender must also be able to advance the money. Cameron v. Ayres, 166 P. 801, Cal. Sup. . Where purchaser procured by broker was without ready cash, but was promised a sufficient loan from persons who had the money wherewith to make it, he was ready, willing and able to COMMISSION AND COMPENSATION OF AGENTS. 433 purchase the property for cash. Welert T. Roberts, 179 N. W. 241, Mich. Sup. . Sec. 465. Finding a purchaser. In the absence of a special contract a broker was not entitled to a commission on merely bringing a purchaser who was ready, willing and able to pay the price demanded, where no sale was made because of a disagreement as to when the transfer should take place. Haase v. Schneider, 98 N. Y. S. 587, 112 App. Div. 336. See also Sec. 541. In an action for services in selling an estate for defendant, where he did not know till after the sale that plaintiff had done anything to aid it, circumstances held to warrant a deci- sion that there was evidence for the jury of a continuing offer, of an acceptance, and of performance by the plaintiff of the contract to obtain a purchaser. Barnstein v. Laus, 104 Mass. 214; Storer v. Markley, 164 Ind. 535, 73 N. E. 1081. Where a broker did not find a purchaser at the request of the owner, and submit the purchaser's offer, at his request, to the owner, he is not entitled to a commission from the owner. John v. Thrower, 75 S. E. 819, 11 Ga. App. 494. A broker is entitled to his commission when he has found a purchaser or a lender, as the case may be, ready, able and willing to purchase the property or to lend the money, in ac- cordance with the terms proposed by the principal. Eggland v. South (S. D. Sup. '08), 118 N. W. 719; Beckley v. Newton, 140 111. App. 301; Munsonv. Carlstrom (Iowa Sup. '09), 119 N. W. 606; Mutchnick v. Davis, 114 N. Y. S. 997; Little v. Her- zinger, 34 Utah, 337, 97 P. 639 ; Caruthers v. Reeser, 134 111. App. 370; Masterson v. Knight, 135 111. App. 548; Glover v. Duffy, 112 N. Y. S. 1099; Hutto v. Strigh, 157 Ala. 566, 47 So. 1031; Peach River Lumber Co. v. Montgomery, (Tex. Civ. App. '08), 115 S. W. 87; Sotsky v. Ginsberg, 114 N. Y. S, 114; Smith v. Sharp (Ala. Sup. '09), 50 S. 381; Beougher v. Clark, 106 P. 39, 81 Kan. 250, 27 L. E. A. (N. S.) 198; Knisely v. Leath, 166 S. W. 207, 256 Mo. 341, 178 S. W. 453; Moore v. Moss, 175 S. W. 1195, 117 Ark. 593; Root v. Barbour, 118 P. 968, 51 Colo. 399; Stevens v. Bacher, 141 S. W. 1143, 162 Mo. App. 284; Ault v. Roberts, 143 P. 1140, 44 Okl. 143, rev. judg. 434 AMERICAN LAW REAL ESTATE AGENCY. on re. 130 P. 532 ; Bellis v. Hann & Kendall, 157 S. W. 427, Tex. Civ. App. ; Shaw v. Faires, 165 S. W. 501, Tex. Civ. App. ; Eichoff v. Russell, 149 P. 146, 46 Okl. 312; 0. L. & H. J. Gross v. Tillinghost, 86 A. 721, 35 B. I. 298; Robertson v. Allen, 184 F. 372, 107 C. C. A. 254; Nofkins v. Poshalinsky, 76 A. 1104, 83 Conn. 458, 20 Ann. Cas. 1023; Smith v. Tatum, 79 S. E. 775, 140 Ga. 719; Phillips v. Brown, 120 P. 454, 21 Idaho, 62; Barney. v. Yazoo Delta Land Co., 101 N. E. 96, 179 Ind. 337; Avery v. Howell, 137 P. 785, 91 Kan. 297; Phillips' Ex'r v. Rudy, 143 S. W. 397, 146 Ky. 780; Gore v. Griffith Realty Co., 169 S. W. 685, 160 Ky. 241 ; Miller v. Haddock, 82 A. 701, 109 Me. 98 ; Wheeler v. Lawler, 110 N. E. 273, 222 Mass. 210; Armstrong v. Martin, 137 N. W. 143, 171 Mich. 291 ; Blakeslee v. Pedbody, 147 N. W. 570, 180 Mich. 408; Lanx v. Hoge,123 P. 949, 45 Mont. 445; Rauchwanger v. Eatzin, 82 A. 510, 82 N. J. Law, 339; Crutchfield v. Webster, 120 P. 615, 31 Okl. 142 ; Carson v. Vance, 130 P. 946, 35 Okl. 584; Reynolds v. Anderson, 132 P. 322, 37 Okl. 368, 46 L. E. A. (N. S.) 144; Hall v. Olson, 114 P. 638, 58 Or. 464; McGilvery v. Lawrence, 152 N. W. 698, 35 S. D. 443; Middle Atl Immi. Co. v. Ardan, 78 S. E. 588, 115 Va. 148; Wig- gins v. Wilson, 45 S. 1011, 55 Fla. 346; McCabe v. Jones, 124 K W. 486, 141 Wis. 540; Canadian Imp. Co. v. Cooper, 161 F. 279, 88 C. C. A. 325; Kelley v. Peacock, 76 S. 547, 115 Miss. 555; Raleig'h R. E. Oo. v. Moser, 95 S. E. 498, 175 N. C. 255. And in case of a sale, when the broker has procured an enforce- able contract of sale upon the principal's terms. Moss & Raley v. Wren (Tex. Sup. '08), 113 S. W. 739. A real estate agent has only authority to find a purchaser and report him to the owner, and, in the absence of a special agree- ment to that effect, he has no power to conclude a sale. Minto v. Moore, 55 S. 542, 1 Ala. App. 556; Davis v. Clausen, 57 S. 79, 2 Ala. App. 378. After a broker has produced a purchaser who has entered into a contract of purchase, the fact that he endeavors to sell such purchaser other property does not constitute an abandonment of the first transaction and deprive him of the right to commissions, if he has produced a purchaser ready, able and willing to pur- chase. Cowan v. Day, 156 111. App. 105. COMMISSION AND COMPENSATION OF AGENTS. 435 To entitle broker to commission, the purchaser procured must actually purchase upon the terms agreed, unless his failure to do so is caused by the vendor's fault. Moore v. Councilman, 81 A. 122, 115 Md. 629. Agent does not have to produce a purchaser "known" to seller to be able, ready and willing to execute a contract. Smith v. Sharp R. E. Co., 77 S. 40, Ala. Sup. . Realty broker's agreement with landowner to procure a cus- tomer would have been performed to the extent that he, as ex- clusive agent to get buyer, might recover commissions, if land- owner had made either an actual sale to customer introduced by him, or agreement binding such customer to buy. Bruce v. Me- serve, 117 N". E. 830, Mass. Sup. . A broker is entitled to commissions, having found a purchaser ready and willing to buy on authorized terms, though owner then withdrew property from market, she having a few days later closed a trade with such purchaser on such terms. Ferguson v. Quick, 78 S. 618, 117 Miss. 692; judg. rev. on sug. of er., 79 S. 83. Where broker took a prospective buyer to his principal, and the prospective buyer decided that he would not purchase, and there- after approached the principal and entered into an agreement with him to furnish a purchaser, and returning the next day with a friend as purchaser, disclosed that he had been bargaining for this friend, instead of himself, from the beginning, and a sale was made, the broker was entitled to his commission. Hodges v. Ramsey, 216 S. W. 568, Mo. App. . Arrangement by prospective purchaser with a bank to have money paid to owner directly, on sale of land, at a certain time was, in fact, having the actual money in the bank as such time, as required by the contract of sale, and would involve the fact whether or not the purchaser was ready at such time to comply with his contract, so that brokers would be entitled to their com- missions. Dennis v. Autrey & Ellis, 220 S. W. 471, Ark. Sup. . Where broker's claim to a commission rests merely on his find- ing a purchaser, and not upon efforts whereby the purchaser was induced to make the purchase, the act of the broker must be the 436 AMERICAN LAW HEAL ESTATE AGENCY. foundation of the negotiations between the purchaser and the seller. Low v. Paddock, 220 S. W. 969, Mo. App. . Eeal estate broker held entitled to commissions for procuring a purchaser for defendant's realty, irrespective of his agreement, unsupported by consideration, to postpone his right thereto until price was paid by buyer. Bernstein v. Fulson Realty Co., 152 N. Y. Supp. 995. Readiness and willingness of the prospective purchaser to buy does not establish a broker's right to compensation for producing him; entry, or offer to enter, into a binding contract with the vendor, being essential. Massie v. Chatom, 127 P. 56, 163 Cal. 772. To entitle a broker to recover on a contract by an owner of land to pay him a commission for making a sale of the land at a stated price, he must have fulfilled the contract by procuring a purchaser to whom a sale is made at such price, or who is will- ing and able to pay it, and it is not sufficient to procure one with whom the owner makes an exchange of lands. Payseno v. Swensen, 178 F. 999. A broker to recover commissions must either show a sale made to the purchaser procured by him, or that the purchaser was able and willing to buy, and that failure to sell was through no fault of the broker or customer. Carrington v. Graves, 89 A. 237, 121 Md. 567; Stevenson v. Bannan, 84 A. 447, 235 Pa. 512; Speer v. Benedum-Trees Oil Co., 86 A. 695, 239 Pa. 180; S. V. Thompson Co. v. Goldman, 51 Pa. Super. Ct. 632. If a broker who has an exclusive agency to sell not coupled with an interest, before notice or knowledge of a sale by owner, has performed his part of the contract in good faith by procur- ing a purchaser on terms fixed by the owner, the owner is liable to the broker for the stipulated commissions. Staats v. Meng el- sen, 180 N. W. 78, Neb. Sup. . In a broker's action for commission for finding a purchaser ready, able and willing to buy, it was immaterial that the owner's agent closed the sale on terms not precisely as prescribed by the owner, when the owner refused to sell the property to the pur- chaser found by the agent solely because he had made a prema- ture sale to another purchaser, and not because of a variance in the terms of sale. Moore v. Gould, 193 P. 1057, Kan. Sup. . COMMISSION AND COMPENSATION OP AGENTS. 437 A broker taking a prospective purchaser to owner of land with no authority from the owner was not entitled to a commission, where a sale was agreed on but none consummated. Meachem Y. Baker, 226 S. W. 967, Mo. Sup. . Sec. 466. Gratuities. Without an express contract providing therefor, a broker is not entitled to a commission for rendering a service for which, by the local custom, no charge is made. Conrey v. Hoover, 10 La. Ann. 437. It was proper to instruct the jury that defendants were lia- ble for the value of plaintiff's services, if they were of such a character and rendered under such circumstances as would indicate to a reasonably intelligent business man, that they were not performed gratuitously, and that compensation was expected, the instruction not assuming that plaintiff had ren- dered all the services for which he asked compensation. Miller v. Early, 22 Ky. L. R. 825, 58 S. W. 789. Whether a broker's services were rendered w r ith expectation of reward is a ques- tion for the jury. Armstrong v. Ft. Edward, 159 N. Y. 315, 53 N. E. 1116 ; Darling v. Howe, 14 N. Y. S. 561, 60 Hun, 578. Where an agent informed his principal that he should charge no commissions for his services, he was held to be precluded from charging commissions during the life of the principal, though the principal had recognized the agent's right to com- missions. Higginson v. Fabre, 3 Desau. (S. C.) 89. Volun- tary services by a broker are mere gratuities. See Mechem on Ag. Sec. 600; also Sec. 443. If plaintiff brokers were not agents of lessee, but were acting for defendant lessor, who had knowledge of and received benefits of services rendered in inducing lessee to lease property, defendant would be liable, unless the dealing he had with plaintiffs, and the services performed by the latter were not such as would lead a person of ordinary understanding, under like circumstances, to believe that plaintiffs were acting for defendant and expecting to be paid therefor. Davis v. Geiger, 212 S. W. 384, Mo. App. . 438 AMERICAN LAW REAL ESTATE AGENCY. Sec. 467. Goods exchanged for land. Defendant agreed to pay plaintiff a commission for finding a purchaser with whom he could exchange his stock of goods for land, and the plaintiff secured a contract with P. to ex- change a certain tract of land for defendant's stock of goods, but, by a mistake of P., the land described in the contract was not owned by him ; it did not appear that defendant was aware of the mistake. Held, that plaintiff was not entitled to a com- mission. Snyder v. Fidler, 135 Iowa, 304, 112 N. W. 546. Sec. 468. Broker entitled to commission in stock of insurance company A broker was employed to procure a purchaser of a farm for an agreed commission; he found a purchaser who pur- chased the farm and paid for it in the stock of an insurance company; the owner agreed to transfer to the broker shares of such stock, but failed to do so. Held, that the broker was entitled to recover the agreed commission. Rider v. Pell, 51 N. Y. 669. See also Sec. 377. Compare Sec. 480. Sec. 469. Broker entitled to commissions where sale was en- joined. An agent who, under a contract, produced a person able and willing to purchase real estate is entitled to his commis- sions, although the sale is afterwards enjoined. Gibson v. Gray, 17 Tex. Civ. App. 646, 43 S. W. 922. See also Sec. 473. Sec. 470. When broker is not entitled to full commission until price paid. "Where the purchase money of a mine was payable in in- stallments, and the broker's commissions were to be deducted from each installment as paid, it is error to render judgment for the full amount of commissions before all the installments have been paid. Gorham v. Heiman, 90 Cal. 346, 27 P. 289; Coate v. Locust Ft. Co., 102 Md. 291, 162 A. 625; Hartman v. Selling, 189 P. 887, Or. Sup. ; Arnold v. La Bell Oil Co., 190 P. 815, Cal. App. . See also Sees. 297, 570. If the owner provided that he shall receive a certain sum be- fore the broker is entitled to any commissions, the broker must complete the sale, and the owner must realize such specified sum COMMISSION AND COMPENSATION OF AGENTS. 439 before the broker can recover anything by way of commissions. Nudelman v. Wildes, 100 111. App. 134. Sec. 471. Broker not informing principal of customer defeats commissions. A real estate agent who fails to induce a customer to pay the price of land demanded by the owner, but predicts that he will ultimately pay the price, is not entitled to commissions where the owner afterwards sells the lands to others for such price, without knowing that it was actually purchased for the customer, the court holding that the broker was not the procur- ing cause of the sale. Goldstein v. Walters, 7 N. Y. S. 756, 8 N. Y. S. 957, 15 Daly, 397; Sandon & Huso v. Ersenhus, 168 N. W. 801, Iowa Sup. ; Haggart v. King, 190 P. 763, Kan. Sup. . See also Sees. 235, 312, 431. Compare Sec. 799. Sec. 472. Knowledge by broker that principal owns but part of the property offered, does not defeat his commissions. A broker's right to commissions for procuring a purchaser for land under an agreement therefor, is not affected by the fact that he knew the principal had title to only five-sixths of the land. Martin v. Ede, 103 Cal. 157, 37 P. 199. Sec. 473. Litigation instituted by third persons does not de- feat the broker's right to commissions. A broker is entitled to commissions where a purchaser was obtained through his agency, the agreement for sale and pur- chase being complete, and only prevented from consummation by litigation instituted by third persons. Moore's Est., 9 Pa. Dist. R. 675. See also Sec. 469. Sec. 474. Methods of earning .commissions by broker. There are at least three different methods of earning com- missions under an agency for the sale of real estate (1) by effecting a binding contract of sale, under authority given to the agent to make a contract for the principal; (2) by produc- ing a purchaser to whom a sale is in fact made, and (3) by 440 AMERICAN LAW HEAL ESTATE AGENCY. producing a purchaser ready, willing and able to buy on the terms specified in the agency agreement. McDermott v. Ma- Jioney, 139 Iowa, 292, 115 N. W. 32. Sec. 474a. A broker employed to sell real estate is not re- quired to prepare a contract of purchase. A broker employed to sell real estate is not required to prepare a contract of purchase. Brackenridge v. Claridge, 42 S. W. 1005, 91 Tex. 527; O'Connell v. Casey, 92 N. E. 804, 206 Mass. 520. Sec. 475. Broker who merely brings the parties together is a middleman, and may recover from each. If the broker merely brings together two parties who desire to exchange or sell their lands, and his employment then ends, and the parties themselves settle the terms of the transaction, he is a mere middleman, and may recover from each party, if each has agreed to pay him. Clark v. Allen, 125 Cal. 276, 57 P. 985; Green v. Robertson, 64 Cal. 75; Manders v. Croft, 3 Colo. App. 236, 32 P. 836 ; Cox v. Haun, 127 Ind. 325, 26 N. E. 822; Midler v. Kutzlel), 1 Bush. (Ky.) 253; Dolph v. Wain- scott, 14 Ky. L. R. (abst.) 304: Montrose v. Eddy, 94 Mich. 100, 53 N. W. 916; Ranney v. Donovan, 78 Mich. 318, 44 N. W. 276; Child v. Ptomey, 17 Mont. 502, 43 P. 714; Norton v. Genesse Nat. Sav., etc., Ass'n, 68 N. Y. S. 32, 57 A. D. 520; Knaus v. Gottfried Krueger Brewing Co., 142 N. Y. 70, 36 N. E. 867; Siegel v. Gould, 1 Lans. (N. Y.) 177; Pollatschiek v. Goodwin, 40 N. Y. S. 682, 17 Misc. 587, 75 St. 86 ; Bonwell v. Auld, 29 N. Y. S. 15, 9 Misc. 65 ; Jarvis v. Schaefer, 105 N. Y. 289, 11 N. E. 634; Bolheimer v. Richardt, 55 How. Pr. (N. Y.) 414; Haviland v. Price, 26 N. Y. S. 757, 6 Misc. 372; Collins v. Fowler, 8 Mo. App. 588; Orion v. Scho field, 61 Wis. 382; McClure v. Luke, 154 Fed. 647; Bass v. Talbert (Tex. Civ. App. '08), 112 S. W. 1077; Ross v. Carr (N. M. Sup. '09), 103 P. 307; Grasinger v. Lucas (S. D. Sup. '09), 123 N. W. COMMISSION AND COMPENSATION OF AGENTS. 441 77; Sternberger v. Young (N. J. Eq. '10), 75 A. 807. See also Sees. 557, 578. Real estate brokers are "middlemen" in respect to a sale of property only where they merely bring the parties together to deal for themselves, standing indifferently between them, they hav- ing undertaken to act as agent for neither. Geddes v. Van Rhee, 148 N. W. 549, 126 Minn. 517. A broker, when acting as a middleman, simply undertakes to bring the parties together, and does not negotiate for either, and may make a contract to receive a commission from both, with or without the other's consent. Clapton v. Godfrey, 139 N". W. 893, 158 Iowa, 376; SilberTcraus v. Winnie, 142 K Y. Supp. 887, 158 App. Div. 50; Langford v. IssenhutJi, 134 K W. 889, 28 S. D. 451; Jordan v. Anderson, 155 N. W. 769, 36 S. D. 508; Leake v. Rcaief, 140 S. W. 814, Tex. Civ. App. ; T. A. Hill & Son v. Potion & Schwartz, 160 S. W. 1155, -- Tex. Civ. App. ; Peters v. RiJey, 81 S. E. 530, 73 W. Va. 785; Litts v. Morse, 130 N. W. 460, 145 Wis. 472; King v. Reed, 141 P. 41, 24 Cal. App. 229. A party claiming commissions who was not a real estate broker, but a mere middleman, in view of his undertaking being to ob- tain a certain price specified by the owner, was under no obliga- tion to undertake to obtain a higher price, and even if, without the knowledge of the owner, he arranged to receive a commission from both sides, he was, notwithstanding, entitled to recover his compensation for effecting the transaction. Jones v. Mo. Lumber & Mining Co., 166 111. App. 266. One employed merely to bring together persons desirous to exchange property, or sell and buy, is a "middleman," agent for neither, and entitled to receive commissions from both. Tracey v. make, 118 N. E. 271, 229. Mass. 57. Where a real estate broker acts as middleman in bringing to- gether two parties, and has made no agreement as to commis- sions, he is entitled to receive a commission from the purchaser, though he has already received one equal to the amount claimed from the seller subsequent to the completion of the transaction. Fpiess v. Ford, 71 Pa. Super. Ct. 210. 442 AMERICAN LAW EEAL ESTATE AGENCY. Quaere? Whether one who acts as middleman, merely bring- ing the vendor and vendee together to make their own contract, without aid, advice to or interference on behalf of, either, may recover compensation from both, without knowledge by one of such arrangement with the other. Harten v. Loeffler, 31 App. D. C. 362. Compare Sec. 578. Sec. 476. Sale of mine by broker, not within description, not entitled to commissions. An agreement providing that defendant should pay the plaintiff a certain commission on any sale made through him, or to pay the same percentage "on any sale made through a certain bond or agreement made with Robert Hennegan of this city, on certain mining property in said agreement in Ures District, State of Sonora, Mexico/' does not provide for com- missions on a sale made through plaintiff of mines situated in the District of Arispe. Wulff v. Lindsay, 8 Ariz. 168, 71 P. 963 ; Gillespie v. Eosenbaum, 173 N. Y. Sup. 429. See also Sees. 59, 181. Compare Sec. 550. Sec. 476a. Broker not performing contract who produces contract to buy asking for abstract additional. An agreement by a purchaser to purchase if abstracts showed title to the satisfaction of the purchasers therein, is not a per- formance of the broker's agreement to sell, specifying the terms, which made no reference to abstracts. Weitbrec v. Morris, 163 P. 1119, Colo. Sup. . Sec. 477. Modification of contract, not assented to by broker, does not affect commissions. Defendant's agreement to pay plaintiff a certain amount for furnishing a purchaser for land is not revoked by de- fendant's statement to plaintiff, after furnishing the name of one who afterwards became a purchaser, that he would pay no commission to any agent on a sale of the land unless a certain price was obtained, the plaintiff not having assented COMMISSION AND COMPENSATION OF AGENTS. 443 to the modification. Burd v. Webster, 128 Wis. 118, 107 N". W. 23; Odell v. Dozier, 104 Ga. 203, 30 S. E. 813; Levistone v. Landreux, 6 La. Ann. 26; Glade v. Eastern III. Min. Co., 129 Mo. App. 443, 107 S. W. 1002; Cody v. Dempsey, 83 N. Y. S. 899, 86 App. Div. 335; Mottos v. Engle, 15 S. D. 330, 89 K W. 651; Mark \. Elliott, 90 N. Y. S. 331; Blair v. Slosson, 27 Tex. Civ. App. 403, 66 S. W. 112; Bishop v. Averill, 17 Wash. 209, 49 P. 237, 50 P. 1024; Heimberger v. Rudd, 138 N. W. 374, 30 S. D. 289; Malloy v. Interstate Inv. Co., 114 P. 167, 62 Wash. 487; Arnold v. Schmeidler, 129 N. Y. Sup. 408, 144 App. Div. 420; 17. 8. Farm Loan Co. v. Darter, 183 P. 696, - Cal. App. . See also Sees. 51, 485. Sec. 477a. When told of prospective purchaser by broker, owner may then raise the price. When land was listed with broker at a certain net price, and broker showed the land one morning to a party who showed an interest at the listed price, and made an appointment to return in the afternoon, and broker then told owner that he had a pros- pective purchaser, the owner had the right to raise the price at said time. McLafferty v. Payne, 215 S. W. 680, Ark. Sup. . Sec. 478. Modification of contract by owner in broker's pres- ence did not affect commissions. The fact that the terms of a sale of realty, as stated to the broker, were modified by the owners as to the commissions, in the broker's presence, and the purchaser's proposal as to the method of payment, would not relieve the owner from liability for com- missions. Huntmer v. Arent, 16 S. D. 465, 93 N. W. 653; Parks v. Sullivan, 152 S. W. 704, Tex. Civ. App. ; Stout v. Thorn- hill, 79 S. 154, Ala. App. . See also Sec. 51. Sec. 479. Modification of contract by broker performing other services modifies right to commissions. Where a broker's duty is not merely to procure a purchaser, but to perform some other agreed services, within a reasonable time or within a limited time, the general rule as to what is re- 444 AMERICAN LAW EEAL ESTATE AGENCY. quired of him to be entitled to his commissions is modified accord- ingly. PMnzy v. Bush, 129 Ga. 479, 59 S. E. 259. Sec. 479a. Owner must satisfy broker's right to commission in the one of two methods left to exercise. Where a contract for a real estate agent's commission reserved to the principal a choice between two methods of satisfaction, and he disables himself from adopting one, he must adopt the other. Avery v. Nichols, 153 P. 557, 96 Kan. 777. Sec. 480. Broker agreeing to accept corporate stock for com- missions, not entitled to recover in money. Where, by the contract in regard to a sale of property, a broker arranges with all the parties that the compensation shall be paid in certain stock of a company to be formed by him and others to buy the land, he can not hold the vendors re- sponsible for the amount of such compensation. Bowles v. Allen (Va. Sup.), 21 S. E. 665. Compare Sec. 468. Sec. 481. Net price to owner, does not entitle broker to excess. A real estate broker to sell land for a certain net price is not entitled, in the absence of a contract therefor, to the ex- cess over such price that he may obtain for the land. Snow v. McFarlane, 51 111. App. 448; Turnley v. Michael (Tex. Civ. App. '91 ), 15 S. W. 912; Wolf grain c. Dill, 166 N. W. 309, S. D. . Compare Deming Inv. Co. v. Meyer (Okla. *07), 91 P. 846. See also Sec. 456. And where a broker was authorized to sell land for $3 per acre net to the owner, and was offered $3.50 by a purchaser, who sub- sequently bought the land of the owner, without the broker's in- termediation, the broker could not recover fifty cents per acre from the purchaser, but his action was against the owner, as it was his duty to sell for the best price obtainable, and account to the owner therefor, less a reasonable compensation. Boysen v. Robertson, 70 Ark. 56, 68 S. W. 243. COMMISSION AND COMPENSATION OF AGENTS. 445 Sec. 482. Net price to owner, broker selling thereat not en- titled to any commission. A broker was orally employed to procure a purchaser of a farm within five days, at a price which should net the owner $11,000 and the broker $875; thereafter the broker stated in writing that any arrangement made by his agent and the own- er would be satisfactory; that he would have persons look at the farm before the expiration of the five days, and that any arrangement should be made in writing; the owner wrote that he would give the broker "a price of $11,000 on" the farm for ten days, "reserving the privilege to sell to others;" the broker sent his agent to the owner, with a writing, for the purpose of making sure of a commission if the sale was made. Held, that the written contract agreed to by the broker, and the owner's written statement, which superseded the oral con- tract, conferred on the broker the right to sell the farm at a sum which would give the owner $11,000, and on the owner the right to sell it to any purchaser not procured by the bro- ker, and authorized a sale to a purchaser procured by the bro- ker for as low a price as $11,000, if the broker's agent in charge of the transaction was willing to do it, unless the owner knew that the agent was acting contrary to his instructions. Haven v. Tartar, 124 Mo. App. 691, 102 S. W. 21 ; Babcock v. Merritt, 1 Colo. App. 84, 27 P. 882 ; Rees v. Spruance, 45 111. 308 ; Bur- nett v. Betts, 236 111. 499, 86 N. E. 258; S anger v. Wilson, 52 111. App. 117; Antisdell v. Canfield, 119 Mich. 229, 77 N. W. 944; Williams v. McGraw. 52 Mich. 480, 18 N. W. 227; Holcomb v. Stafford, 102 Minn. 233, 113 N. W. 449 ; Beatty v. Eussell, 41 Neb. 321, 59 N. W. 919 ; Hottrook v. Inv. Co., 30 Ore. 259, 47 P. 920; Ames v. Lamont, 107 Wis. 531, 83 N. W. 780; Wol- verton v. Turtle, 51 Ore. 501, 94 P. 961; White v. Gaida, 168 S. W. 473, -- Tex. Civ. App. ; Gilmore v. Bolio, 131 N. W. 105, 165 Mich. 633, 34 L. E. A. (K S.) 1050; Ciss v. Gales, 153 S. W. 1088, 168 Mo. App. 282. See also Sees. 456, 560. In some jurisdictions, in such case the broker is, nevertheless, entitled to recover of the owner a reasonable compensation for his services. Alexander v. Breedon, 14 B. Mon. (Ky.) 125; AiTcin v. Allan, 14 Manitoba, 549; Ford v. Brown, 120 Cal. 551, 446 AMERICAN LAW REAL ESTATE AGENCY. 52 P. 817. But can not recover where the sale is not completed. Seattle Land Co. v. Day, 2 Wash. 451, 27 P. 74. An agreement for the sale of real estate for a net amount to the owners, the person making the sale to have as compensation what he could get above that amount, entitled him to no compen- sation for making a sale until the owners received the net amount stipulated, unless a failure to do so was due to their own fault. Burnett v. Botts, 236 111. 499, 86 N. E. 258. Where an owner listed his land with a broker at $80 per acre net to the owner, and the broker found a purchaser at $82.50 per acre, and presented a contract to the owner calling for a price of $80 per acre, and the owner signing it stated that he was to pay no commission, the owner, on cancelling the contract, with the consent of the purchaser, was not liable for commissions. Mc- Carty v. Bristow, 145 S. W. 1029, Tex. Civ. App. . Where owners of a ranch listed it with an agent for sale at $35 net price per acre, the agent to procure his commission out of some advanced price, and later told agent that if he could get an offer of $35, commission might be adjusted, and agent did not obtain such offer, and some time later a person who had promised agent to consider it, bought it directly from the owners at that price, the owners were not liable under special contract to agent for commission, where record showed no bad faith or unfair dealing on their part toward agent. Karr v. Moffett, 185 P. 890, re. den. 187 P. 683, Kan. Sup. . CHAPTER VII. SECTION. 483. Net price to owner and note for excess to broker On vendor's refusal broker entitled to com- mission. 484. Net price, broker entitled to excess from first payment made. 485. Where owner changed contract from gross to net price liable to broker for commissions. 486. Broker's commissions computed on actual sum received. 487. Failing to disclose that nominal is not the real purchaser does not defeat broker's commis- sions. 487a. Liability to broker for commis- sion depends upon real parties to bargain. 488. Broker entitled to commissions where non-performance of con- tract not occasioned by his fault. 489. Where neither principal nor broker effecting sale had no- tice of other broker's negotia- tions he is not entitled to commissions. 489a. Direct sale by owner to unknown broker's customer defeats lat- ter's right to commission. 490. Principal selling before expira- tion of time given broker without notice, broker entitled to commissions. 491. Reporting offer of $16,000 in- stead of $15,000 did not de- prive broker of commissions. SECTION. 492. Oral contract to sell land followed by written contract entitled broker to commissions. 492a. Specific supersedes prior indef- inite contract of agency. 492b. Parol contract cannot take prop- erty out of hands of broker held under written one. 492c. Broker's specific written con- tract supersedes ordinary rule as to payment of commissions. 493. Broker entitled to commissions for sale of four houses, not entitled to proportionate amount for one. 493a. Broker entitled to commission for sale of house on install- ments. 494. Broker entitled to commissions for sale of lots, not entitled to same rate for large body of land. 495. Broker promised commissions for selling part, entitled to the same rate for selling all. 496. Broker who failed to sell all en- titled to commissions on sale of part by owner to customer. 496a. Broker employed to sell entire tract of land must do so to earn commission. 496b. On owner wrongfully terminat- ing contract to sell entire tract, broker entitled to value of services rendered. 496c. Selling in different acreage por- tions from that prescribed barred broker of commission. 447 448 AMERICAN LAW REAL ESTATE AGENCY. SECTION. 496d. Broker entitled to commissions when three-fourths of collec- tions enough to pay them. 497. Share of profits on sale through sub-agent not defeated by unfair dealing of latter. 497a. Broker entitled to share of profits on resale of land purchased. 498. Commissions payable on sale, and not on collection of de- ferred payments. 498a. Agreement by broker to wait for commission until owner sold farm, held to mean for a rea- sonable time. 499. Commissions are due when con- tract is made with purchaser produced by broker. 499a. Broker's commissions are earned when contract of exchange is executed. 499b. Commissions not due until ac- tual transfer made. SECTION. 499c. Owner who refused to convey land liable to broker for com- mission, though date of settle- ment fixed as time of payment. 499d. When lease not executed broker barred commission under his contract. 499e. Where contract provided pur- chaser should pay broker's commission, on owner's breach, latter not liable therefor. 499f. Where broker guilty of fraud or misrepresentation, defeating sale, not entitled to com- mission. 499g. Broker entitled to commission, although agreement contem- plated execution of a further contract. 499h. Although contract provided for payment of commissions as purchases paid, on breach all became due. Sec. 483. Net price to owner and note for excess to broker, on vendor's refusal broker entitled to commissions. Defendant employed plaintiff to effect a sale of his land so as to yield $2,500. plaintiff to receive as compensation all she could obtain above that sum; she procured a purchaser for $2,880, $2,500 to be paid to defendant in cash, and plaintiff to re- ceive the purchaser's notes, secured by mortgage, f. or the balance; defendant refused to convey. Held, that he was liable to plaintiff for her loss. Canfield v. Orange, 13 N. D. 622, 102 N. W. 313 ; Foster v. Taylor, 44 Wash. 313, 87 P. 358; Van Gorder v. Sherman, 81 Iowa, 403, 46 N. W. 1087 ; Luhn v. Fordtran (Tex. C. A. '08), 115 S. W. 667. COMMISSION AND COMPENSATION OP AGENTS. 449 Sec. 483a. Broker not entitled to commission when to be paid by purchaser who defaulted. Owners of land gave brokers notes in payment for services payable only out of the money to be paid by W., purchaser, or his assigns. The contract between owner and purchaser provided that on default of the purchaser, or a release to the purchaser, forfeited all rights. The purchaser defaulted, and the owner brought suit to quiet title, after which the purchaser assigned his rights to a corporation and the action was dismissed. The corporation, on ascertaining the forfeiture, instituted independent negotiations with the owner and purchased the property. Held, that the brokers were not entitled to commissions. Edwards v. Baker, 180 P. 33, Cal. App. . Sec. 484. Net price, broker entitled to excess from first pay- ment made. Where a land-owner employed a broker to sell land on an understanding that he should have as his commissions any- thing that could be obtained over a specified price, the broker was entitled to his commissions out of the first payment made by the purchaser. Young v. Ruhwedel, 119 Mo. App. 231, 96 S. W. 228. See also Sees. 498, 499. Sec. 485. Where the owner changed the contract from gross to net price liable to broker for commissions. Plaintiff procured a contract authorizing him to sell defend- ant's timber land on a five per cent, commission, and, having found a purchaser, presented to defendant for his signature an option giving the grantee the right to purchase in sixty days; defendant, before signing the option, but without any conversation with, the plaintiff, changed the same so as to read that the price was "net cash" to him. Held, that such altera- tion meant that the price was net cash to defendant, as between him and the purchaser, and had no reference to defendant's 450 AMERICAN LAW REAL ESTATE AGENCY. contract with plaintiff for commissions. Love v. Scatcherd, 146 Fed. 1, 77 C. C. A. 1. See also Sec. 477. Sec. 486. Broker's commissions computed on actual amount received. An agent who agreed to sell a farm for two per cent, on a certain amount, and three per cent, on all received in excess of that amount, is not entitled to commissions on the value of part of a crop which he knew belonged to another, and which was deducted from the gross amount received. Barrett v. John- son, 64 Pa. St. 223; Oliver v. Little (Nev. Sup. '09), 103 P. 240; Weeks v. Smith (N. J. Sup. '10), 75 A. 773; Blakeley v. Pursell, 90 N. Y. S. 337. An agreement between two brokers to divide the commission on sale of certain lands means net commission, and one of them having expended $200 in making the sale was entitled to a credit for that sum on the whole commission. Jones v. Kehoe, 112 P. 497, 61 Wash. 422. Sec. 487. Failing to disclose that nominal is not the real pur- chaser does not defeat the broker's commissions. A mere failure to disclose to the principal that the nominal purchaser is not the real purchaser does not amount to a fraud to deprive the broker of commissions. Veasey v. Carson, 177 Mass. 117, 58 N. E. 177, 53 L. R. A. 241. See also Sees. 525, 452. Sec. 487a. Liability to broker for commissions depends upon the real parties to the bargain. Liability to a broker for commissions is not dependent upon what parties formally entered into the written contract of sale offered to, or negotiated in by, the principal, but wholly upon who constituted the "real" parties to the bargain. McLaughlin v. Campbell (N. J. Err. & App. '09), 74 A. 530. See also Sec. 317. Sec. 488. Broker entitled to commissions where non-per- v , formance of contract not occasioned by his fault. A broker is entitled to a commission where the customer found by him and the principal enter into an enforceable con- tract of purchase or sale, although one or both of the parties COMMISSION AND COMPENSATION OF AGENTS. 451 refuse to comply with the contract, and the failure is not at- tributable to the fault of the broker. Jenkins v. H oiling sworth, 83 111. App. 139; Flynn v. Jordal, 124 Iowa, 457, 100 N. W. 326; Bach v. Emrich, 35 N. Y. Super. Ct. 548; Folinsbee v. Sawyer, 36 N. Y. S. 405, 15 Misc. 293; Brown v. Helmuth, 21 N. Y. S. 615, 2 Misc. 566; Donohue v. Flanagan, 9 N. Y. S. 273, 28 N. Y. S. 757; Larson v. Burroughs, 116 N. Y. S. 358; Feist v. Jerolamon, 75 A. 751, 81 N". J. Law, 437; Stocking v. Ruth, 141 S. W. 570, Tex. Civ. App. ; Eetcliam v. Axelman, 142 N. W. 62, 160 Iowa, 456; WomacJc v. Douglas, 163 S. W. 1130, 157 Ky. 716; Reasoner v. Yates, 134 N. W. 651, 90 Neb. 757; Clark v. Battaglia, 47 Pa. Super. Ct. 290; Irons v. Snyder, 49 Pa. Super. Ct. 522; Hamburger & Dreyling v. Thomas, 126 S. W. 560, 103 Tex. 280; Fleming v. Hattan, 142 P. 971, 92 Kan. 948; Levy v. Dunken Realty Co., 179 S. W. 679, den. re. 178 S. W. 984, Tex. Civ. App. ; Herrick v. Woodam, 127 S. W. 391, 143 Mo. App. 258; Herrick v. Maness, 127 S. W. 394, 142 Mo. App. 399; Bell v. Stedman, 130 N. W. 257, 88 Neb. 625; Koliha v. Jonas, 154 N. W. 556, 98 Neb. 790; Greenblatt v. Fox, 59 Pa. Super. Ct. 53; Wilson v. Buck, 162 S. W. 1018, -- Tex. Civ. App. ; Stanton v. Carnanan, 115 P. 339, 15 Cal. App. 527; Valerius v. Luhring, 127 N. W. 112, 87 Neb. 425; Einnon v. Poe- rachke, 133 N. Y. Sup. 528; Bledsoe v. Lombard, 194 S. W. 518, - Mo. App. ; Fuday v. Gill, 161 N. W. 900, Mich. Sup. ; Stewart v. Bowles, 185 P. 868, Cal. App. ; Robertson v. Koeltitzky, 217 S. W. 543, Mo. App. ; Casey v. Hart, Wal- lace & Co., 222 S. W. Ill, Ky. Ct. App. ; Stablein v. Ge- meinde, 177 N. W. 810, S. D. Sup. ; Morgan v. W. A. How- ard Realty Co., 191 P. 114, Colo. Sup. ; Underwood v. Dus- kin & Stewart Realty Co., 85 S. 845, Ala. App. ; Cooper v. Newsom, 224 S. W. 568, Tex. Civ. App. ; Chandler v. Games-Ferguson Realty Co., 224 S.,W. 484, -- Ark. Sup. ; Garner v. Davis, 225 S. W. 567, Tex. Civ. App. . Sec. 489. Where neither principal nor broker effecting sale had notice of other broker's negotiations, he is not en- titled to commissions. Where neither the principal nor the broker effecting the sale had notice of former negotiations with the other broker the 452 AMERICAN LAW REAL ESTATE AGENCY. latter is not entitled to a commission, especially where she failed to bring the buyer and seller to an agreement. Raines v. Barney, 67 N. Y. S. 164, 33 Misc. 748; Martin v. Billings, 2 N. Y. City Ct. 86; Kifer v. Yoder, 198 Pa. St. 308, 47 A. 674; Glasscock v. Vanfleet, 100 Tenn. 603, 46 S. W. 449; Single v. Russell, 80 A. 164, 114 Md. 418. See also Sees. 360, 558. There are cases holding that, irrespective of notice, the com- mission belongs to the broker who is the procuring cause of the sale. Scott v. Lloyd, 17 Colo. 401, 35 P. 733, and Sec. 446. Sec. 489a. Direct sale by owner to unknown broker's cus- tomer defeats latter 's right to commission. Under broker's contract to find a cash purchaser of property, price to be determined by negotiations between owner and buyer, where sale was made directly by owner, but not on cash terms, broker is not entitled to commission unless seller had notice that buyer was procured by him. Fawley v. Sheldon, 163 N. W. 585, Iowa Sup. . Sec. 490. Principal selling before expiration of time given broker, without notice, broker entitled to commissions. A broker is entitled to commissions where the principal sells before the expiration of the agency, without giving the broker notice of the sale. Woodall v. Foster, 91 Tenn. 195, 18 S. W. 241 ; Cadigan v. Craltree, 186 Mass. 7, 70 N. E. 1033, 66 L. E. A. 982 ; ReisTius-Remer Land Co. v. Benner, 91 Minn. 401, 98 N". W. 186 ; Payne v. Tvntchell, 81 A. 350, 81 N. J. Law, 193 ; Mac- Bride v. Rogers, 85 A. 202, 83 N. J. Law, 407. (This is contrary to the doctrine that a sale puts an end to an agency, and if his contract has been violated the broker has a right of action for the breach.) See Sec. 15. Sec. 491. Reporting offer of $16,000 instead of $15,000 did not deprive broker of commission. The fact that a broker reports to his principal that an offer of $16,000 for the land has been made instead of $15,000, does not affect his right to a commission where, as a result of his negotiations, a sale for the smaller sum was made. PeckJiam v. Ashhurst, 18 R. I. 376, 28 A. 357. See also Sees. 215, 502. COMMISSION AND COMPENSATION OF AGENTS. 453 Sec. 492. Oral contract to sell land, followed by written con- tract, entitles the broker to commissions. Rev. Stat. 1899, Sec. 3418, provides that no contract for the sale of lands made by an agent shall be binding on the prin- cipal unless the agent is authorized in writing to make the eon- tract. Held, that where a land-owner orally employed a broker to find a purchaser, and the broker made a written contract with the purchaser, the production thereof to the land-owner was equivalent to the production of a purchaser; since, if the owner had chosen to ratify the contract, it would have been binding. Young v. Ruhwedel, 119 Mo. App. 231, 96 S. W. 228; Dougherty v. Smith, 192 S. W. 1131, Tex. Civ. App. ; Puf- fer v. Bodley, 181 P. 1, Or. Sup. . Sec. 492a. Specific contract supersedes prior indefinite con- tract of agency. A contract employing a broker to procure a purchased for a specified sum held to supersede a prior contract indefinite in terms. Arizona Parrall Mining Co. v. Forbes, 146 P. 504, 16 Ariz. 395. Sec. 492b. Parol contract can not take property out of hands of broker held under written one. A parol agreement between the owner and the broker held to preclude the taking of the property out of the hands of the agent as provided in a former written instrument. Shadwick v. Smith, 143 S. W. 1027, 147 Ky. 159. Sec. 492c. Broker's specific written contract supersedes ordi- nary rule as to payment of commissions. Written agreement between a broker and the owner as to the amount and payment of his commission; held, to supersede the ordinary rule that a broker earns his commission when he pro- cures the execution of a valid agreement for sale. Clark v. Hovey, 105 N. E. 222, 217 Mass. 485. 454 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 493. Broker entitled to commissions for sale of four houses, not entitled to proportionate amount for one. Where a broker is entitled to a commission of one-third of the excess above a certain amount realized on a sale of four houses, he is not entitled to a proportionate amount on the sale of only one house. Meyer v. Haaren, 5 N. Y. S. 436, 57 N. Y. Super. Ct. 574. Compare Sec. 495. Sec. 493a. Broker entitled to commission for sale of house on installments. A broker employed to sell a house on installments is entitled to his commission upon procuring one ready to enter into an op- tion contract with owner, and penalty of forfeiture in case of non- performance, satisfactory to the owner, even though the purchaser failed to carry out his option, that being a risk run by the owner. Robinson v. Lowe, 155 S. W. 51, 169 Mo. App. 443. Plaintiff held entitled to a commission for procuring a house for defendant, though the house was bought by defendant and his daughter. Weiss v. Weiss, 154 N". Y. Sup. 202. Sec. 494. Broker entitled to commissions for a sale of lots, not entitled to same rate for a large body of the land. A contract to pay a certain commission on a sale of lots at a fixed price out of a body of land, does not entitle the agent to a commission at the same rate for a large body of the land. Louisville Bdg. Ass'n v. Began, 20 Ky. L. E. 1629, 49 S. W. 796. Sec. 495. Broker promised commissions for selling part, en- titled to the same rate for selling all. Where defendant agreed to pay plaintiff for his services one- half of the proceeds of the sale of two mining claims, but in the sale of these, with others, the interests are not separately valued, the plaintiff is entitled to recover one-half of the entire proceeds of the sale, if it is impossible to determine what pro- portion should be credited to the claims in which he is inter- ested. Huff v. Hardwick, 19 Colo. App. 416, 75 P. 593. Com- pare Sec. 493. COMMISSION AND COMPENSATION OF AGENTS. 455 Sec. 496. Broker who failed to sell all, entitled to commis- sions on sale of part by owner to his customer. "Where >a broker was employed to sell a whole tract of land, or a part thereof, and after negotiating the broker failed to make a sale and an attempt was made to discharge him; but he continued his negotiations, and subsequently the owner sold a portion of the tract to a person with whom the broker had prior negotiations, the owner was held liable to pay the broker a proportionate commission. Diamond v. Wheeler, 80 N. Y. S. 416, 80 App. Div. 58; Thompson v. Sargeant, 134 P. 7, 66 Or. 384; B. J. & B. F. Camp Lumber Co. v. Teddie, 82 S. 86, Fla. Sup. See to contrary, Carpenter v. Atlas Imp. Co., 108 N. Y. S. 547, 123 App. Div. 706. See also Sees. 455, 967. Sec. 496a. Broker employed to sell entire tract of land must do so to earn commission. A contract consisting of letters engaging real estate brokers to find a purchaser for land, in consideration for which they were to receive all of the price received in excess of $10 per acre, con- strued and held not to authorize brokers to find a purchaser for any part of the tract less than the whole. Bentley v. Edwards, 146 N. W. 347, 125 Minn. 179, Ann. Cas. 1915 C, 882, 51 L. R. A. (N. S.) 254; Cone v. Keil, 124 P. 548, 18 Cal. App. 675. A broker employed to procure within a specified time a pur- chaser at a specified price does not earn his commission by procur- ing a person willing to purchase a part of the property at a re- duced price, though the owner after the specified time sells to such person at a reduced price. Young v. Stecher Cooperage Wlcs., 168 S. W. 611, 259 Mo. 215. Sec. 496b. On owner wrongfully terminating contract to sell entire tract, broker entitled to value of services rendered. Where defendant, without right, terminated a contract provid- ing for closing of each sale as made, but not entitling plaintiffs to compensation unless they sold the entire tract, plaintiffs held entitled to recover the reasonable value of the services which they rendered. Boydstun v. Hackney Land Credit Co., 177 N. W. 779, Minn. Sup. . 456 AMERICAN LAW REAL ESTATE AGENCY. Sec. 496c. Selling in different acreage portions from that pre- scribed barred broker of commission. Where a broker was only authorized to sell the entire tract, or a certain specified part thereof, he could not recover commissions upon selling a part of the tract of a different acreage than that which he was authorized to sell. Boyd v. Big Three Ranch Co., 133 P. 623, 22 Cal. App. 108. Sec. 496d. Broker entitled to commissions when three-fourths of collections enough to pay them. Under a real estate brokerage contract giving the broker a com- mission of 20% of the list price and one-half of the overage on the prices obtained above the list price, broker is entitled to his full compensation when % of the collections are sufficient to pay them, though the collections to that time are not equal to the list price. Hopewell Heights Dev, Co. v. Kagey-Marshall Realty Co., 102 S. E. 582, Va. Sup. . Sec. 497. Share of profits on sale through sub-agent not de- feated by unfair dealing of latter. Where plaintiff, who was the sales agent for certain prop- erty, authorized defendant to sell the same, and agreed to di- vide the profits with him, any unfair dealing on defendant's part with plaintiff's principal, not affecting the sale, did not affect the plaintiff's right, as against defendant, to share in the profits of the sale, in the absence of participancy by plain- tiff in defendant's wrong. Madler v. PozorsU, 124 Wis. 477, 102 N. W. 892. See also Sec. 520. Compare Sec. 522 Sec. 497a. Broker entitled to share of profits on re-sale of land purchased. Agreement that defendant was to have one-third of profits on resale of land purchased by plaintiff, held, complied with, where defendant looked after property, and was helpful in negotiations resulting in sale to another. Alexander v. Critcher, 94 S. E. 335, Va. Sup. . Wl COMMISSION AND COMPENSATION OF AGENTS. 457 Sec. 498. Commissions payable on sale, and not on collection of deferred payments. fhere a vendor instructed his agent that he would take $15 per acre for his part of the land, and accepted the terms of a sale for part cash and part in deferred payments, with security, the agents' compensation is due when the sale is completed, and not on collection of the deferred payments. Hancock v. Dodge, 85 Miss. 728, 37 S. 711 ; Wallace v. Shepard, 42 Texas Civ. App. 594, 94 S. W. 151. See also Sec. 484. Sec. 498a. Agreement by broker to wait for commission until owner sold farm held to mean for a reasonable time. An agreement hy a broker to take his client's note for his com- mission, and wait for its payment until the client sold the farm received in exchange, was merely an agreement to wait for a rea- sonable time for a sale of the farm, and did not make his right to commissions depend upon its sale. Goldsberry v. Thomas, 165 S. W. 1179, 178 Mo. App. 334. Sec. 499. Commissions are due when contract is made with purchaser produced by broker. Real estate commissions become due and payable when the broker has produced a purchaser with whom the owner entered into a valid and enforceable contract. Dennis v. Walters, 123 111. App. 93. Where a broker has procured a purchaser acceptable to the seller, and an enforceable written contract is made between them, the broker's right to commissions is not dependent on the purchaser's ability to pay for the land. Hamburger v. Thomas (Tex. Civ. App. '09), 118 S. W. 770; Hudson P. Ross Co. v. Goodale, Perry & Wright, 169 K Y. Sup. 446; McCartney v. Shaves, 188 P. 663, Okl. Sup. . Compare Sec. 464. See also Sees. 484, 504. Sec. 499a. Broker's commissions are earned when contract of exchange is executed. Where a broker is employed to effect an exchange of property. he earns his commission when the contract of exchange is exe- 458 AMERICAN LAW REAL ESTATE AGENCY. cuted. EoTikolil v. Sussmann, 113 N. Y. S. 586, 61 Misc. 246. See also Sec. 449. Sec. 499b. Commission not due until actual transfer made. A note evidencing the commission to be paid to plaintiff for procuring a purchaser for defendant's land was directed to plaintiff and signed and delivered by the defendant. It pro- vided that if the deal pending between defendant and a third party for an exchange of property was consummated, defend- ant would pay plaintiff $1,000 commissions. Held, that no commission was due until the actual transfer of the title of the property by an exchange of deeds. Goodwin v. Sieman, 106 Minn. 368, 118 N. W. 1008; Wilson v. Rafter, 174 S. W. 137, 188 Mo. App. 356. See also Sec. 449. Sec. 499c. Owner who refused to convey land liable to broker for commission, though date of settlement fixed as time of payment. A vendor of land who agreed to pay real estate brokers their commission on the day of settlement, but refused to convey, is liable, though a date of settlement was fixed by the contract. EaucJiwanger v. Katzin, 82 A. 510, 82 N. J. Law, 339. Sec. 499d. When lease not executed, broker barred commis- sion under his contract. In an action for brokers' commissions for furnishing tenants, that the defendant refused to execute a lease, a contract between defendant and the brokers that they should not be entitled to commissions unless the lease was actually executed; held, a bar to their right to commissions. Williams v. Ashner, 137 N. Y. Sup. 275, 152 App. Div. 447. Sec. 499e. Where contract provided purchaser should pay broker's commission, on owner's breach, latter not liable therefor. Where a contract between the broker and the owner specified that the purchaser should pay broker's commissions, the broker could not recover commissions from the owner, under the con- COMMISSION AND COMPENSATION OF AGENTS. 459 tract, though he refused to complete a sale to the purchaser pro- cured. Robinson v. Oklahoma Fire Ins. Co., 155 P. 202, Okl. Sup. . Sec. 499f. Where broker guilty of fraud or misrepresenta- tion, defeating sale, not entitled to commission. Where a broker is engaged to procure a purchaser for de- fendant's premises, and defendant enters into mutual contract with the purchaser so procured, the broker's commission is earned, as a general rule, but where the commission is agreed upon, on the theory that the deal shall go through, and it does not, through no fault of the principal, or where the deal is not consummated because of fraud or misrepresentation of material facts by the broker to his principal, the latter does not become liable because of his acceptance of the purchaser. Marks v. Schultze, 177 111. App. 638. Sec. 499g. Broker entitled to commission although agreement jr contemplated execution of a further contract. Vendor's broker is entitled to commissions, where prospective purchaser executes valid contract of purchase, although such agreement contemplated that it would be followed by another contract. Karahadian v. Lockett, 165 P. 552, Cal. App. . V_ Sec. 499h. Although contract provided for payment of com- missions as purchaser paid, on breach, all became due. Where broker's contract with owner providea xor payment of commissions pro rata as purchase price was paid, broker is en- titled to entire commission upon cancellation of owner's contract with purchaser by mutual consent of owner and purchaser. Ratz- leff v. Trainor-Desmond Co., 183 P. 269, Cal. App. . Where vendor, having agreed to pay broker commissions pro rata upon the payment of purchase price, after payment of first 20% conveyed title to the land, and assigned its interest in the contracts to another party, the entire commission became due, vendor having in effect abandoned, and made it impossible to carry out its contract with purchasers procured by broker. Id. CHAPTER VIII. SECTION. 500. Broker entitled to commissions on actual payment by default- ing vendee. 500a. Broker limited to commissions on $1,000, although property later sold for $12,500. 501. Broker's right to commissions not defeated because to be paid from purchase money. 502. Principal liable for commissions on sale to customer at lower price, unless fixed price re- quired. 503. Where principal agreed to pay commissions upon receipt of price, broker not entitled be- fore. 503a. Broker not entitled to commis- sion for contract to purchase differing as to deferred pay- ments. 504. Commissions are usually payable upon completion of the trans- action. 505. Broker entitled to commissions although purchaser pays more than he authorized him to offer. 506. Where purchaser defaulted bro- ker entitled to commissions on actual payments. 507. Cases where plaintiff was held not to be the procuring cause of sales, and not entitled to commissions. 507a. Broker who is the procuring of sale entitled to commission. 508. Where sale frustrated through 460 SECTION. failure to partition, broker entitled to commissions. 509. Partial performance entitled bro- ker to recover neither on con- tract nor on quantum meruit. 510. Agent in charge of real estate securing responsible tenant, entitled to recover on a quantum meruit. 511. On principal selling, broker could recover for services on a quantum meruit. 512. Principal selling for less than agreed price, broker entitled to recover on a quantum meruit. 513. In the absence of an express contract broker procuring a purchaser may recover on a quantum meruit. 513a. In absence of fixed rule measure of broker's compensation the value of the service rendered. 514. Demand by broker for $10,000 to release lien defeated his right to commissions. 514a. Owner entitled to counterclaim for expenses of suit to remove cloud on title caused by bro- ker recording contract breached by his misrepresentations. 515. First broker held to have right to commissions by second's relinquishment. 515a. Waiver of variance in contract by acquiescence. 515b. Owner accepting purchaser waived requirement from bro- ker as to financial ability. COMMISSION AND COMPENSATION OF AGENTS. 461 SECTION. 515c. Broker must prove financial ability of purchaser, and ordi- narily this not waived by owner's acceptance. 515d. Broker to recover commission must show that variance in purchaser's contract was waived by owner. 515e. Where owner paid second broker for furnishing purchaser, first having waived his rights, lat- ter not entitled to recover. 515f. Waiver by party to exchange that other party should as- sume mortgage on former's premises. 516. If authority to secure a pur- chaser is revocable broker finding after barred commis- sions. 517. If the customer reserves the SECTION. right to withdraw from trans- action if title bad, if exercised bars commissions. 517a. On breach of contract to ex- change lands, broker cannot recover from wrongdoer the commission agreed to be paid by other party. 518. Unless exclusive rival broker entitled to commissions on sale by the other. 519. Broker and sub-agent stand in similar relations as to com- pensation as do principal and agent. 520. Sub- agent entitled to share in commissions though he vio- lated instructions. 520a. Broker liable to sub-agent though property on sale found not to belong to vendor. Sec. 500. Broker entitled to commissions on actual payments by defaulting vendee. The owner of land authorized a broker to make a sale there- of, "commissions to be paid out of the payments as made," and a letter in setting forth the terms of sale provided that on default by the purchaser all prior payments should be for- feited, and neither party have any claim on the other; the bro- ker found a purchaser who gave a deed of trust to secure the payments, and subsequently defaulted; thereafter, the vendor released the vendee from his obligations and conveyed to an- other, and the broker sued for commissions on the entire price. Held, that the contract between the parties did not entitle the broker to commissions except on those payments actually made by the vendee. Murray v. Richard, 103 Va. 132, 48 S. E. 871 ; Peters v. Anderson, 88 Va. 1051, 14 S. E. 974. See also Sees. 297, 506. 462 AMERICAN LAW REAL ESTATE AGENCY. Sec. 500a. Broker limited to commissions on $1,000, although property later sold for $12,500. Plaintiff negotiated a lease of lands belonging to W., under a verbal contract whereby he was to receive a commission of one-third the rent per annum. Before the expiration of the lease W. died, and the defendant was appointed administrator of the estate. The lessees were $17,500 in default for rent, and defendant foreclosed the landlord's lien on a growing crop on the premises for the arrears in rent, purchasing the same for $1,000 at the foreclosure sale. Thereafter defendant sold the crop to other parties for $12,500, and plaintiff, who had never received any commissions from- the rents, brought an action to recover therefor, claiming one-third commissions on the $12,500 paid defendant, on the theory that it was a part of the balance due on the rent. Held, that plaintiff was entitled only to a commission on the $1,000 paid by defendants for the crop, since the foreclosure was to effect a payment of the rent, and- as such the amount thereby received was credited, not the subsequent sale of the property purchased. Sckultz v. Goldman, 1 Ariz. 279, 64 P. 425. Sec. 501. Broker's right to commissions not defeated because to be paid from purchase money. A broker may recover a commission of his principal, although the sale made is not consummaited, if it fails solely on account of a defect in the vendor's title of which the broker was neither notified nor had personal knowledge, although the commission was to be paid out of the proceeds of sale. Cheatham v. Yar- Irough, 90 Tenn. 77, 15 S. W. 1076. See also Sec. 570. For the contrary doctrine, where actual sale was not made as pro- vided by contract. Bull v. Price, 1 Bing. (Eng.) 237, 9 L. J. C., P., 0. S. 78. See also Sec. 458. Sec. 502. Principal liable for commissions on sale to customer at lower price, unless a fixed price required. Where a principal makes a sale to a purchaser found by the broker, having availed himself fo the broker's services, he is liable for the commission, although the sale is made at a lower price than that originally proposed by him to the broker. Crook COMMISSION AND COMPENSATION OF AGENTS. 463 v. Forst, 116 Ala. 395, 22 S. 540; W&liams v. Bishop, 11 Colo. App. 378, 53 P. 239; Schegal v. Allerton, 65 Conn. 260, 32 A. 363; Baker v. Murphy, 105 111. App. 151 ; Wright v. McClintock, 136 Mo. App. 438 ; Loehde v. Halsey, 88 111. App. 452 ; Stievil v. Lally, 89 Ark. 195, 115 S. W. 1134; McConaughty v. Mehannah, 28 111. App. 169; Plant v. Thompson, 42 Kan. 664, 22 P. 726; Ratts v. Shepherd, 37 Kan. 20, 14 P. 496; Hancock v. Stacey (Tex. Civ. App. '09), 116 S. W. 177; Hubachek v. Hazzard, 83 Minn. 437, 86 N. W. 426; McCormack v. Henderson, 100 Mo. App. 647, 75 S. W. 171; Stinde v. Bleach, 42 Mo. App. 578; Lawson v. Black Diamond Coal Mining Co. (Wash. Sup. '09), 102 P. 759; Wetqell v. Wagoner, 41 Mo. App. 509; Martin v. Silliman, 53 N. Y. 615; Martin v. Pagan, 88 N. Y. S. 472, 95 App. Div. 154 ; Levy v. Coogan, 9 N. Y. S. 534, 16 Daly, 137 ; Chilton v. Butler, 1 E. D. Smith, 150; Hobos v. Edgar, 51 N. Y. S. 1120, 23 Misc. 618 ; Gold v. Serrell, 26 N. Y. S. 5, 6 Misc. 124; Steinfeld v. Strom, 63 N. Y. S. 966, 31 Misc. 167: Keys v. Johnson, 68 Pa. St. 42; Byrd v. Frost (Tex. Civ. App. '94), 29 S. W. 46; Pierce v. Nichols (Tex. Civ. App. '08), 110 S. W. 206 ; Barnes v. German Sav., etc., Soc., 21 Wash. 448, 58 P. 569; Tinkleton v. Spurck, 115 111. App. 521; Weeks v. Smith (N. J. Sup. '10), 75 A. 773; Blake v. Perrin, 242 F. 54, 154 C. C. A. 646; Rowland v. Progressive Inv. Co., 202 S. W. 257, Mo. App. ; Millage v. Irwin, 187 P. 825, Colo. Sup. ; Arnold v. La Belle Oil Co., 190 P. 815, Cal. App. . Unless the right to a commission is made conditional upon a sale being effected at the price fixed in the broker's authority. Armes v. Cameron, 19 D. C. 435; Buhl v. Noe, 51 111. App. 622; Schwartz v. Yearly, 31 Md. 270; Child* v. Ptomey, 17 Mont. 502, 43 P. 714; Briggs v. Rowe, I Abb. Dec. (N. Y.) 189, 4 Keyes, 424; Steinfeld v. Storm, 63 N. Y. S. 966, 31 Misc. 167; Largent v. Story (Tex. Civ. App. '01), 61 S. W. 977; McArthur v. Slosson, 53 Wis. 41, 9 N. W. 784; Newton v. Conness (Tex. Civ. App. '08), 106 S. W. 892; Ryan v. Page, 134 Iowa, 60, 111 N. W. 405 ; Bridgeman v. Hepburn, 13 Brit. Col. 389. Sec. 503. Where principal agreed to pay commissions upon receipt of price, broker not entitled before. The principal agreed to pay the broker a commission for selling land when the vendees paid a certain sum and gave 464 AMEKICAN LAW REAL ESTATE AGENCY. their note and mortgage for the balance, the vendees executed their note but never paid the money; the broker was not en- titled to commissions. McPhail v. Buell, 87 Cal. 115, 25 P. 266; Ormsby v. Graham, 123 Iowa, 22, 98 N. W. 724; Hartman v. Selling, 192 P. 408, Or. Sup. . See also Sees. 449, 456, 458. Sec. 503a, Broker not entitled to commission for contract to purchase differing as to deferred payments. Where brokers were authorized to sell lands under an agree- ment which provided that deferred payments should be secured by a deed of trust on the entire premises, they are not entitled to commission for procuring purchasers ready, able and willing to buy, where contract provided a different method of securing the deferred purchase price. Sullivan v. Turner, 82 S. 325, Miss. Sup. . Sec. 504. Commissions are usually payable upon completion of the transaction. A real estate broker is entitled to the commissions agreed on for the successful negotiation of an exchange of property placed in his hands, if the terms of the exchange are accepted by the owner, as the obligation to pay the commission then becomes fixed. Lockwood v. Halsey, 41 Kan. 166, 21 P. 98; Einhorn v. P. Derby & Co., 132 N. Y. Sup. 327; Clark v. Asbury, 134 S. W. 286, Tex. Civ. Ap. ; Caldwell v. Tanehill, 84 S. E. 6, 117 Va. 11. In the absence of a provision to the contrary in the contract of employment. Frye v. Schwarz, 87 N". Y. App. Div. 611. See also Sees. 498, 499a, 499b. Sec. 505. Broker entitled to commissions although purchaser pays more than he authorized broker to offer. Where the principal tried to get the broker to negotiate a trade of his land for a house, stating that he was willing to give $1,000 boot, and would give plaintiff $100 if the trade was consummated and the trade was made by the principal con- senting to give more boot, the broker was entitled to his com- mission. Carson v. Baker, 2 Colo. App. 248, 29 P. 1134. In the COMMISSION AND COMPENSATION OF AGENTS. 465 absence of an agreement limiting to a fixed price beyond which the purchaser had to go to effect the purchase. Lestrade v. Vanzini, 6 La. Ann. 399. See also Sec. 24. Sec. 506. Where purchaser defaulted broker entitled to com- missions on actual payments. A receiver of an insolvent bank employed the services of an agent to effect a sale of certain realty which he held in right of the bank, agreeing that the agent should receive ten per cent, commission as his compensation; there was no agreement as to when such commission was to be paid, whether out of the cash payments, or on payment of the entire purchase money; the agent sold the property for $85.000 ; the purchaser paid $10,000 cash, and made default as to the residue. Held, that the agent was entitled to his commission on so much of the purchase money as was or could be paid, and on that only. Peters v. Anderson, 88 Va. 1051. 14 S. E. 974; Murray v. Richard, 103 Va. 132, 48 S. E. 871. See also Sees. 297, 500. Sec. 507. Cases where plaintiff was held not to be the pro- curing cause of sale, and not entitled to commissions. HaUyday v. Southern Farm Agency, 100 Md. 294, 59 A. 646; Wood v. Burton, 47 N. Y. S. 184, 21 Misc. 326 ; Burd v. Webster, 128 Wis. 118, 107 N. W. 23; Goff v. Hurst (Ky. Ct. App. '09), 122 S. W. 148; Floyd v. Misner, 166 N. W. 1046, Iowa Sup. . Sec. 507a. Broker who is the procuring cause of sale entitled to commission. That owner of land negotiated with purchaser of land before agent approached such purchaser would not bar the agent's right to commission if he was, in fact, the procuring cause of the sale. Rowland v. Progressive Inv. Co., 202 S. W. 257, Mo. App. . The broker who is the procuring cause of the sale, whether he be the first or second to engage the attention of the pur- chaser, and not the broker who first spoke of the property, is entitled to the commission. Bunion v. Compredon, 171 P. 142, N. M. Sup. . 466 AMERICAN LAW EEAL ESTATE AGENCY. If plaintiff was employed to procure a customer, and a sale was made through his efforts, it was immaterial with what pur- pose the purchaser was induced to go to the office of the seller. Hallheimer v. Rice, 169 N. Y. Sup. 1002. See also Sec. 446. Sec. 508. Where sale frustrated through failure to partition, broker entitled to commissions. Defendant authorized plaintiff, a real estate broker, to sell land, and through him a contract of sale to W. was made of a definite number of acres, eighteen of which were to be made up by defendant's having a thirty-six-acre tract, in which, he had an undivided half interest, partitioned; the contract pro- vided that the title was to be passed on by W. 's attorney ; the defendant failed to have the partition made, stating that a division line had been adopted by him and his co-tenant, but there was no evidence of this. Held, that W.'s refusal to per- form the contract on account of the failure to partition being justified, plaintiff was entitled to recover his commissions of defendant. Attrition v. First Nat. Bk., 38 Tex. Civ. App. 614, 86 S. W. 646. See also Sec. 555. Sec. 509. Partial performance entitles broker to recover neither on contract nor on quantum meruit. Where a petition by a broker to recover commissions counted on an express contract by defendant to pay a certain price, if plaintiff obtained a purchaser for the entire tract of timber land, etc., and the evidence disclosed only a partial perform- ance, plaintiff was not entitled to recover on a quantum meruit. Veatah v. Norman, 309 Mo. App. 387, 84 S. W. 350; Carpenter v. Atlas Imp. Co., 108 N. Y. S. 547, 123 App. Div. 706 ; Dillard v. Field, 153 S. W. 532, 168 Mo. App. 206; Howell v. Bennett, 145 S. W. 535, 103 Ark. 620; Douglas v. Spangenberg, 137 P. 1103, 23 Cal. App. 294; Caldwell v. Tannehill, 84 S. E. 6, 117 Va. 11; Bruce v. Mesarve, 117 N. E. 830, Mass. ; Hall v. Schiff, 167 N. Y. Sup. 362, 179 App. Div. 699; Porter v. Carney, 172 N. W. 644, Iowa Sup. ; McLaughlin & Co. v. Southern Hotel Co., 177 N. Y. Sup. 323; Oban v. Ducharme, 106 A. 777, Vt. Sup. ; Cusick v. Worthington Pump & Machy. Cor., COMMISSION AND COMPENSATION OP AGENTS. 467 173 K W. 212, Wis. Sup. . See also Sec. 935. Mechem on Ag., Sec. 635. Sec. 510. Agent in charge of real estate, securing responsible tenant, entitled to recover on a quantum meruit. A complaint alleged that plaintiffs were employed to take charge of defendant's real estate, as agent to rent the same and collect the rents; that they performed their part of the contract by procuring responsible tenants for the property; that defendant revoked their contract of agency, without com- pensating them for their services. Held, that, treating the ac- tion as on a quantum meruit for services on a contract per- formed by plaintiffs, the complaint was sufficient. New Kana- wha Coal & Mm. Co. v. Wright, 163 Ind, 529, 72 N. E. 550; LockJiart v. Hamlin, 190 N. Y. 132, 82 N. E. 1094. Sec. 511. On principal selling, broker could recover for ser- vices on a quantum meruit. Where, after defendant had employed plaintiff to sell cer- tain standing timber at specified price and terms, he availed himself of plaintiff's services and sold the timber to an employe of the person with whom plaintiff had been negotiating on different terms, plaintiff was entitled, in an action on his con- tract, to join a prayer for a recovery of the reasonable value of the services, and recover on a quantum meruit. McDonald v. Cabiness, 100 Tex. 615, 98 S. W. 943, affirmed 102 S. W. 720. Compare Johnson v. Va. & Car. Lumber Co., 163 F. 249, 89 C. C. A. 632; Smith v. Va. & Car. Lumber Co., 163 F. 249, 89 C. C. A. 632; Hughes v. Daniel 65 S. 518, 187 Ala. 41; Alford v. Creagh, 62 S. 254, 7 Ala. App. 358. Sec. 512. Principal selling for less than agreed price, broker entitled to recover on a quantum meruit. An agent under a contract with his principal was to receive all in excess of a stipulated price for which certain timber sold, provided he obtained a purchaser at a price considerably in excess of the minimum price stipulated, but the principal sold the timber on different terms than those agreed upon in 468 AMEBICAN LAW EEAL ESTATE AGENCY. the contract. Held, that the agent having procured the pur- chaser was entitled to recover on a quantum, meruit, although the principal had changed the terms of the sale as provided for in the contract. McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 720; Stiultz v. Zelmar (Tex. Civ. App. '08), 111 S. W. 776. See also Sees. 24, 446. Sec. 513. In the absence of an express contract broker pro- curing a purchaser may recover on a quantum meruit. A broker to procure a purchaser for real estate is entitled to such commissions as are usual for procuring a purchaser for property of similar character and value, unless a different compensation is agreed upon. Walker v. Baldwin-, 106 Md. 619, 68 A. 25 ; Hollis v. Weston, 156 Mass. 357, 31 N. E. 483 ; Hart- man v. Warner, 75 Conn. 197, 52 A. 719; Lansing v. Johnson, 18 Neb. 174, 24 N. W. 726 ; Baer v. Koch, 21 N. Y. S. 974, 2 Misc. 334; Harrel v. Zimpleman, 66 Tex. 292, 17 S. W. 478; Phillips v. Roberts, 90 111. 492; Roberts v. Markham, 109 P. 127, 26 Okl. 387; Taggart v. Hunter, 150 P. 738, 78 Or. 139, judg. rev. on re., 152 P. 871, 78 Or. 139; Thos. S. Jones & Co. v. Moore, 99 S. W. 286, 30 Ky. Law Eep. 603; Walker v. Baldwin & Frick, 68 A. 25, 106 Md. 615; Louva v. Worden, 152 N". W. 639, 30 N". D. 401; Mattock v. Jarabek, 164 N. W. 587, Minn. Sup. . See also Sees. 587, 615. Applies also to void parol contract. Robinson v. Willard, 16 0. C. C. 464. Sec. 51 3a. In absence of fixed rate, measure of broker's com- pensation the value of the service rendered. Upon a suit by a broker to recover ordinary commissions for effecting the sale of a colliery, it appeared that commissions ranged from five to twenty-five per cent. Held, in the absence of evidence of a uniform custom or usage, that the measure of plaintiff's compensation should be the value of the service rendered. Potts v. Aechtertnacht, 93 Pa. St. 138. See also Sec. 587. Sec. 514. Demand by broker for $10,000 to release lien de- feated his right to commissions. Complainant's agent executed an agreement in her name, with- out her authority, giving defendant the exclusive right to pur- COMMISSION AND COMPENSATION OF AGENTS. 469 chase or sell a farm for a period of one year for $20,000, and in case defendant did not exercise his right to purchase, but sold the property he was to receive two per cent, on the $20.000, and 1 all the farm sold for above such sum as compensation for his services; defendant procured a prospective purchaser to whom he offered the farm for $20,000, but the purchaser de- clined to buy at that price, and subsequently made a contract with complainant to purchase the farm for $22,500; as soon as defendant discovered the purchaser was dealing direct with the owner, defendant filed his contract for record, claiming an option for $20,000, and refused to release the same unless he was paid $10,000. Held, that such act clouded the title and justified the purchaser's refusal to complete the sale, depriving defendant of the right to commissions. Woolf v. Sullivan, 224 111. 509, 79 N. E. 646. See also Sec. 290. Sec. 514a. Owner entitled to counterclaim for expenses pf suit to remove cloud on title caused by broker recording contract breached by his misrepresentations. If a broker suing for a commission for negotiating a contract to exchange land, which was repudiated by defendant principal, induced the defendant to execute contract through fraudulent misrepresentations, defendant is entitled to counterclaim for nec- essary expenses in removing the cloud on her title by the broker's act in recording the contract. Duncan v. Turner, 154 S. W. 816, 171 Mo. App. 661. Sec. 515. First broker held to have the right to commissions by second's relinquishment. Where M., who was to receive a commission for a sale of B.'s land', turned over the sale of the land to L., agreeing that L. should have the commissions therefor, to which B. consented before a sale was made, L., on selling the land, was not entitled to a commission as the assignee of M., but because he, with the knowledge and consent of B., sold the land after M. had waived his right to do so. Munson v. Malon, 135 Iowa, 335, 112 N. W. 775. 470 AMERICAN LAW REAL ESTATE AGENCY. Sec. 515a. Waiver of variance in contract by acquiescence. Though the taking of notes payable on or before maturity was a technical variation from authority to sell on time at a specified rate of interest, the vendor waived his right when, on seeking time for delivery of possession, he wrote to his broker that everything else would be all right. Watkins v. Thomas (Mo. App. '10),' 124 S. W. 1063. The vendor's right to demand that the broker put him in di- rect communication with the purchaser may be waived. Henry v. Harker, 122 P. 298, 61 Or. 276, aff. judg. on re., 118 P. 205, 61 Or. 276. Broker entitled to commissions, although contract made on dif- ferent terms, where variance is waived by owner. Brown v. Ma- son, 99 P. 867, 155 Cal. 155, 21 L. E. A. (N. S.) 328. Sec. 515b. Owner accepting purchaser waived requirement from broker as to financial ability. Broker not required to prove that his purchasers were ready, willing and able to buy, where defendants, on receiving notice of the sales, wrote plaintiff and the proposed purchasers confirming the same. E. R. & D. C. Kelp v. Brazer, 161 S. W. 899, Tex. Civ. App. . Sec. 515c. Broker must prove financial ability of purchaser, and ordinarily this is not waived by owner's acceptance. Broker must procure a purchaser able and ready to comply with the terms of sale, and where no contract is made there is no waiver of this condition though the owner accepts the purchaser, unless he has notice that he is unable or unwilling to comply with the terms. Bike v. McHugh & Groom, 66 S. 452, 188 Ala. 237. Sec. 515d. Broker, to recover commission, must show that variance in purchaser's contract was waived by owner. Where a contract of sale consummated by a broker did not conform to the enlistment contract, the broker is not entitled to recover, unless he can show that the departure from the enlist- COMMISSION AND COMPENSATION OP AGENTS. 471 merit was waived by the vendor, his principal. Peeples v. Grif- fith, 214 S. W. 561, Tex. Civ. App. Sec. 515e. Where owner paid second broker for furnishing purchaser, first having waived his rights, latter not en- titled to recover. Where one realty broker, with whom land was listed, turned a second broker over to the owner, with the statement that such second broker was his associate, and that any arrangement made with him would be satisfactory, and the terms of sale and agree- ment with reference to commission are made by the owner with the second broker, and the owner paid commission to the second broker, according to his agreement with him, the first broker is not entitled to recover commissions from the owner. Brannen v. Poole, 218 S. W. 186, Ark. Sup. . Sec. 515f. Waiver by party to exchange that other party should assume mortgage on former's premises. A requirement of defendant's offer to exchange lands made to brokers that the other party should assume a mortgage was waived, where the other party only agreed to take the property subject to the mortgage, and defendant made no objection to the form of acceptance, and in depositing his deed in escrow did not condition delivery on compliance with such requirement. Gall- way v. Galbreaih, 187 P. 73, Cal. App. . Sec. 516. If authority to secure a purchaser is revocable, broker finding after barred commissions. By the statement of a real estate owner to a broker that if the latter or any one else could secure a purchaser for the land by a certain date, on terms specified, the land might go, gives the broker nothing more than a revocable authority binding the owner to pay commissions only in case a purchaser is found before revocation, and is not an agreement that the agency shall continue until the date specified. Milligan v. Owen, 123 Iowa, 285, 98 N. W. 792 ; Kane v. Dawson, 52 Wash. 411, 100 P. 837. 472 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 517. If the customer reserves the right to withdraw from the transaction if title bad, if exercised, bars commissions. If the customer reserves the privilege to withdraw from the transaction, in case he finds, upon examination, that the title is bad, the broker is not entitled to a commission upon the cus- tomer's refusal, by the exercise of the reserved privilege, to make the purchase for that reason. Condict v. Cowdrey, 139 N. Y. S. 273, 34 N. E. 781; West v. Stoeckel, 6 Ohio Dec. (Rep.) 1082, 10 Am. L. Rec. 309 ; Blankenship v. Ryerson, 50 Ala, 426 ; Gflchrist v. Clarke, 86 Tenn. 583, 8 S. W. 572; Carter v. Har- rell (Tex. Civ. App. '09), 118 S. W. 1139. Sec. 517a. On breach of contract to exchange lands, broker can not recover from wrongdoer the commission agreed to be paid by other party. Where a broker employed by defendant and a third person to exchange their respective lands, induced them to enter into a valid contract for an exchange, and defendant was financially able to carry out his contract, but without legal excuse refused to do so, the broker could not recover from defendant the amount of commission the third person had agreed to pay. Bird v. Rowell, 167 S. W. 1172, 180 Mo. App. 421. Sec. 518. Unless exclusive rival broker not entitled to com- missions on sale by the other. Unless real estate brokers had the exclusive right to make a sale of certain property, they were not entitled to a commis- sion if the sale was made by some one else, even though they secured a purchaser. Rothenberger v. Turner, 30 Ky. L. R. 1018, 99 S. W. 1150; Hennings v. Persons, 108 Va, 1, 61 S. B. 866; Mueller v. Bell (Tex. Civ. App. '09), 117 S. W. 993. Sec. 519. Broker and sub-agent stand in similar relations as to compensation as do principal and agent. A real estate broker and his sub-agent stand relatively in the same position, with reference to the right to compensation, as do the principal and the broker. Leonard v. Roberts, 20 Colo. 88, 36 P. 880; Olsen v. Jordan, 38 Minn. 466, 38 N. W. 485; Warren Com. & Inv. Co. v. Hull, 120 Mo. App. 432, 96 COMMISSION AND COMPENSATION OF AGENTS. 473 S. W. 1038 ; Parker v. Merrell, 173 Mass. 391, 53 N. .E. 913 ; Whiting v. Saunders, 51 N. Y. S. 211, 23 Misc. 332; Weinstein v. Golding, 40 N. Y. S. 680, 17 Misc. 613; Eastland v. Maney, 36 Tex. Civ. App. 147, 81 S. W. 574 ; Blake v. Austen, 33 Tex. Civ. App. 112, 75 S. W. 571 ; J. B. Watkin's Ld. Mtge. Co. v. Thetford (Tex. C. A. '06), 96 S. W. 72; Bartbell v. Peter, 88 Wis. 316, 60 N. W. 429; Madler v. Pozorski, 124 Wis. 477, 102 N. W. 892 ; McCleary v. Willis, 35 Wash. 696, 77 P. 1073. Sec. 520. Sub-agent entitled to share in commissions though he violated instructions. The fact that a sub-agent in his first negotiations with the customer violates the instructions of the owner to the agent by asking more than the price fixed, will not estop him from claiming a share of the commissions voluntarily paid to the agent on the sale of the land, as the owner alone could com- plain upon that ground. Russell v. Andrea, 79 Wis. 108, 48 N. W. 117. Sec. 520a. Broker liable to sub-agent though property on sale found not to belong to vendor. A real estate broker employed to sell land, who agrees to pay another broker a commission, if he procures a purchaser there- for, is liable for the commission if a purchaser is procured, though he afterwards discovers that the land is not the prop- erty of the principal. Barthel v. Peter, 88 Wis. 316, 60 N. W. 429. See also Sec. 519. CHAPTER IX. SECTION. 521. Sub-agent entitled to commission for sale made after revocation of authority. 522. Sub-agent denied recovery of unlawful commissions. 523. Typical cases in which the sub- agent was held entitled to recover share of commissions. 523a. Contract between agent and sub- agent need not be in writing. 524. Sub-agent not entitled to re- cover of his principal for sale made at reduced price. 525. Sub-agent entitled to commis- sions, though he failed to give the name of purchaser. 526. Broker selling to railroad in- stead of to syndicate entitled to commissions. 527. Broker entitled to commissions, though sale other than that contemplated. 528. Broker's right to commissions not affected by owner's sup- positions. 529. Broker's erroneous advice as to liability for sewer tax defeated right to commissions. 530. Broker failing to name purchaser in telegram to principal does not defeat commissions. 530a. Broker entitled to compensation though he withheld buyer's name from principal. 531. Where vendor sought to vary terms, and purchaser refused to take, broker entitled to commissions. 474 SECTION. 532. Broker entitled to commissions on bringing parties together, though they contract on dif- ferent terms. 532a. Broker contracting for commis- sion on list price, entitled to same rate on reduced price. 533. On making a sale defect in the title does not deprive broker of right to commissions. 534. Where customer exercises right to withdraw if title defective, broker barred commissions. 535. Where broker is to have part of the profits on the sale, not entitled where it fails by de- fect in title. 536. Payment of commissions to broker may depend on the transfer of title. 536a. Broker's compensation due on breach by vendor, although postponed by contract till title passed. 537. Broker not entitled to commis- sions where customer refused to complete purchase on ac- count of a supposed defect in the title. 538. Whether principal or another holds the title, broker on pro- ducing buyer entitled to com- missions. 539. Where sale defeated by want of title, which he knows, broker barred commissions. COMMISSION AND COMPENSATION OF AGENTS. 475 SECTION. SECTION. 540. Ignorance of contract by holder 543. Unavailing efforts to perform of record title did not defeat do not entitle broker to corn- broker's right to commissions. missions. 641. Where broker produced pur- 544. To entitle broker to commissions chaser and sale failed by a for sale his negotiations must dispute over taxes, broker be uninterrupted, barred commissions. 545. Undisclosed agreement to divide 542. Alter memorandum contract commissions with purchaser signed, and purchaser refused doea not bar broker's right to pay water tax, broker thereto, entitled to commissions. Sec. 521. Sub-agent entitled to commission for sale made after revocation of authority. Where the owner of real property employed an agent to find a purchaser therefor, and the latter, within the scope of his authority, but without the owner's knowledge, employed a bro- ker for the same purpose, and the owner revoked the authority given to the agent, and the broker afterward, without notice of the revocation, found a purchaser, it was held that the bro- ker could recover commissions from the owner. Lamson v. Sims, 48 N. Y. Super. Ct. 281. Compare Mechem on Ag. Sec. 197. Sec. 522. Sub-agent denied recovery of unlawful commissions. A broker procured a customer for another broker, with the understanding that the latter should charge for procuring a loan of money at a rate prohibited by statute, and that such commissions should be divided. Held, that suit would not lie in behalf of the former broker for his share of such commis- sions against the latter broker to whom they had been paid by the customer. Gregory v. Wilson, 36 N. J. L. 315. Compare Sec. 497. See also Sec. 559. Sec. 523. Typical cases in which the sub-agent was held en- titled to recover share of commissions. The owner of certain real estate of one hundred acres in extent placed the same in the hands of defendants with au- thority to sell it for him at the rate of $4,000 per acre; that thereafter defendants employed plaintiffs to find a purchaser at the rate of $4,250 per acre ; that plaintiffs found parties who 476 AMERICAN LAW REAL ESTATE AGENCY. were ready and willing to purchase upon the terms mentioned; that thereafter an agreement was executed whereby defendants promised to pay plaintiffs a commission of $5,000; that there- after the sale in question was consummated and the defend- ants received and accepted from the purchasers their share of the purchase money from such sale, amounting in money, notes and other property to more than $10,000. Held, that plaintiff was entitled to recover. Olsen v. Jordan, 38 Minn. 466, 38 N. W. 485; Warren Com. & Inv. Co. v. Hull, 120 Mo. App. 432, 96 S. W. 1038 ; Murphy v. Hiltlridle, 132 Iowa, 114, 109 N. W. 471; Prov. Trust Co. v. Darraugh, 168 Ind. 29, 78 N. E. 1030; Taylor v. Barbour, 90 Miss. 888, 44 S. 988. Sec. 523a. Contract between agent and sub-agent need not be in writing. Cobbey's Ann. Stat. 1911, Sec. 10856, requiring contracts of employment of brokers to sell land to be in writing; held, not to apply to contract between agent and sub-agent. Reasoner v. Yates, 134 N. W. 651, 90 Neb. 757. Sec. 524. Sub-agent not entitled to recover of his principal for sale made at reduced price. A broker for the sale of lands who agreed to pay other bro- kers a certain sum out of his own commissions, if they sold at a certain price, but who had no interest in the land, as such brokers knew, is not liable to them for commissions on a sale at a less price. Whitcomb v. Dickinson, 169 Mass. 16, 47 N. E. 426. See also Sec. 422. Sec. 525. Sub-agent entitled to commissions, though he failed to give the name of purchaser. Where, in an action on a contract for division of broker's commissions, there was evidence that defendant sold the prop- erty to the purchaser secured by plaintiff, in accordance with the contract between them for a division of commissions, and that, at the time of the sale, defendant knew that plaintiff had procured a purchaser, it was immaterial that plaintiff failed to impart to defendant, prior to the sale, the name of the per- son with whom plaintiff had been negotiating, and to whom the property was subsequently sold. McCleary v. Willis, 35 COMMISSION AND COMPENSATION OF AGENTS. 477 Wash. 676, 77 P. 1073; Feist v. Jerolomen (N. J. Err & App. '10), 75 A. 751. See also Sees. 487, 530. Sec. 526. Broker selling to railroad instead of to syndicate entitled to commissions. A broker who is promised a commission for selling a street car line to a certain syndicate is entitled to a commission on effecting such sale to a railroad company organized by the syn- dicate, and the fact that such company was not duly incorporated is no defense. Smith v. Mayfield, 60 111. App. 266. Compare Graves v. Horton, 38 Minn. 66, 35 N. W. 568. Compare Sec. 577. Sec. 527. Broker entitled to commissions though sale other than that contemplated. To secover on a contract providing for payment for services for promoting the sale of a street railway, on the conclusion of "any trade" with the prospective vendee, it is immaterial that the trade finally consummated was not the negotiation pending at the time the contract was made. Alexander v. Wakefield (Tex. Civ. App. '02), 69 S. W. 77. See Sec. 532. Compare Sec. 577. Sec. 528. Broker's right to commissions not affected by owners' suppositions. The fact that defendant sold to a person who he thought was purchasing for himself and not for the church, does not affect plaintiff's right to his commissions, where, after learn- ing that the purchase was for the church, defendant conveyed it, when he might have avoided the contract. McEnight v. Thaijer, 21 N. Y. S. 440; Bach v. Emerich, 35 N. Y. Super. Ct. 548. See also Sec. 24. Sec. 529. Broker's erroneous advice as to liability for sewer tax defeated right to commissions. A broker was employed to procure a purchaser of real estate ; he procured a purchaser who contracted for the purchase there- of; the owner executed a warranty deed conveying the prem- ises to the purchaser; the deed was not delivered and the pur- chase price paid over, because of the refusal of the owner to pay the cost of sewer tax bills which would be subsequently 478 AMERICAN LAW EEAL ESTATE AGENCY. issued, the construction of the sewer being in progress during the transactions; the attorney of the broker erroneously advised that the owner was liable for the tax bills. Held, that the bro- ker was not entitled to commissions. Mercantile Trust Go. v. Niggeman, 119 Mo. App. 56, 96 S. W. 293. Sec. 530. Broker failing to name purchaser in telegram to principal does not defeat commissions. Where a broker employed to the effect a sale has found a pur- chaser willing to buy upon the terms named, and of sufficient responsibility, he is entitled to the commissions, although in the telegram announcing the sale he did not name the purchaser. Duclos v. Cunningham, 102 1ST. Y. 678, 6 K E. 790. Compare Sees. 241, 525. Sec. 530a. Broker entitled to compensation, though he did not disclose to principal buyer's name. A realty broker who is the procuring cause of his principal's sale of realty is entitled to the agreed compensation, though he did not disclose the name of the prospective purchaser to his principal, if the principal was not prejudiced by such non-dis- closure. Byerts v. Schreidi, 180 P. 284, --KM. Sup. . Sec. 531. Where vendor sought to vary terms, and purchaser refused to take, broker entitled to commissions. Evidence in an action for broker's commissions held sufficient to show that he procured a purchaser on the terms named by defendant, and that the purchaser refused to enter into a con- tract because defendant sought to vary the terms. Milne v. Ingersoll Segeant Drill Co., 104 N. Y. S. 1053, 120 App. Div. 465 ; Millan v. Porter, 31 Mo. App. 563 ; Buckingham v. Harris, 10 Colo. 455, 15 Pac. 817 ; Smith v. Fairchild, 1 Colo. 510, 4 P. 757 ; Finley v. Dyer, 79 Mo. App. 604 ; McQuillen v. Carpenter, 72 N. Y. App. Div. 595, 76 S. 556 ; Beele v. Ranger, 35 N. Y. Super. Ct. 452; Gorman v. Scholle. 13 Daly, 516; Michaelis v. 'Euffmann, 76 N. Y. S. 973, 37 Misc. 830; Halprin v. Schachne, 57 N. Y. S. 735, 27 Misc. 195; Hattenback v. Gwndersheimer, 13 N. Y. S. 814. COMMISSION AND COMPENSATION OF AGENTS. 479 Sec. 532. Broker entitled to commissions on bringing parties together, though they contract on different terms. A land owner can not avail himself of the services of an agent who procured a purchaser, to effect a sale himself to such purchaser, and thereby deprive the agent of his commissions, nor can he merely to save the commissions agreed to be paid to the agent, effect such sale at a small reduction from the price at which the agent was authorized to find a purchaser, or make immaterial changes in the terms of the sale. Crook v. Forst, 116 Ala. 395, 22 S. 540; Knowles v. Harvey, 10 Colo. App. 9, 52 P. 46; Bryan v. Alert. 3 App. Gas. (D. C.) 180; Henry v. Stewart, 185 111. 448, 57 N. E. 190; Sm/der v. Fearer, 87 111. App. 275; Lipsley v. Holridge, 71 HI. App. 652; Adams v. Decker, 34 HI. App. 17; Lawrence v. Atwood, 1 111. App. 217 ; McJFarland v. Lillard, 2 Ind. App. 160, 28 N. E. 229 ; Welch v. Young (Iowa Sup. '99), 79 N. W. 59; Marlott v. Elliott, 69 Kan. 477, 77 P. 104; Coleman v. Meade, 13 Bush. (Ky.) 358; Woods v. Stephens, 46 Mo. 555 ; Henderson v. Mace, 64 Mo. App. 393; O'Toole v. Tucker, 40 N. Y. S. 695, 17 Misc. 554; Jones v. Henry, 36 N". Y. S. 483, 15 Misc. 151; Keys v. Johnson, 68 Pa. St. 42; Huntsman v. Arendt, 16 S. D. 465, 93 N". W. 653; Evans v. Gay, 38 Tex. Civ. App. 442, 74 S. W. 575; Rieger v. Bigger, 29 Mo. App. 421; Corbal v. Beard, 92 Iowa, 360, 60 N. W. 636; Lestrade v. Perrara, 6 La. Ann. 398; Futrell v. Reeves, 176 S. W. 1151, 165 Ky. 282 ; Friedenwald v. Welch, 140 N. W. 564, 174 Mich. 399 ; Shober v. Blackford, 127 P. 329, 46 Mont. 194; Lord v. U. S. Trans. Co., 128 N. Y. Sup. 451, 143 App. Div. 437; Northern Im. So. v. Alger, 147 N. W. 100, 27 N. D. 467; Merritt v. Am. Catering Co., 128 P. 1074, 71 Wash. 425; Gensett v. Robinson, 165 1ST. Y. Sup. 464; Goodwin v. Gun- ter, 195 S. W. 848, rev. judg., 142 S. W. 664; Ford v. Cole, 195 S. W. 661, Tex. Civ. App. ; Hoddle v. Malone E. E. Co., 196 S. W. 347, Tex. Civ. App. ; Geo. R. Reed & Co. v. Sturges, 163 N. Y. Sup. 559, 176, App. Div. 657; Hanscom v. Blanchard, 105 A. 291, Me. Sup. ; Colvin v. Post Mtge. & Loan Co., 122 N. E. 454, -- N. Y. Ct. App. , rev. judg., 159 N. Y. Sup. 361, mot. to am. remit, den., 123 N". E. 860; Red River Valley Loan Co. v. Hutchins, 170 N. W. 347, N. D. 480 AMERICAN LAW HEAL ESTATE AGENCY. Sup. ; Alcers v. Moore, 209 S. W. 241, Tex. Civ. App. ; Cehn v. Reich, 175 N. Y. Sup. 660; Ansory v. MacAlpine, 175 K Y. Sup. 551 ; Well v. Harding, 211 S. W. 927, aff. judg., 159 S. W. 1129, -- Tex. Civ. App. ; Jenkins v. Kay, 224 S. W. 1028, Mo. App. ; Weller v. Phillip Gross Realty Co., 180 1ST. W. 927, Wis. Sup. ; Williams v. Fraker, 129 N. E. 413, Ind. App. . See Sees 527, 68. Sec. 532a. Broker contracting for commission on list price entitled to same rate on greatly reduced price. Where broker was to receive a commission of 2%% on a sale of property for $250,000, he was entitled, when through his ef- forts the property was sold for $210,000, to 2%% commission on the latter sum, in the absence of a subsequent agreement to re- ceive less. Pryor v. Scott, 200 S. W. 900, Tex. Civ. App. . Sec. 533. On making a sale defect in the title does not de- prive the broker of right to commissions. A broker employed to effect a sale or lease of property, or employed to effect a loan on the security of real estate, who acts in good faith, is entitled, to the commission, although the transaction fails of consummation because of a real or alleged defect in the principal's title, if the broker had no knowledge of the defect in the title at the time of finding the customer. Clark v. H. G. Thompson Co.. 75 Conn. 161, 52 A. 720 ; Phelps v. Preusch, 83 Gal. 626, 23 P. 1111; Middleton v. Findle, 25 Cal. 76; Martin v. Ede, 103 Cal. 157, 37 P. 199; Smith v. Schiele, 93 Cal. 144, 28 P. 857 ; Dotson v. Mittikin, 27 App. Gas. (D. C.) 500; Attix v. Phelan, 5 Iowa, 336; Davis v. Lawrence, 52 Kan. 383, 34 P. 1.051; Remington v. Sellers, 8 Kan. App. 806, 57 P. 551 ; Gornhart v. Reutschler, 72 111. 535 ; Fitzpatrick v. Gilson, 176 Mass. 477, 57 N. E. 1000; Toomls v. Alexander, 101 Mass. 255 ; Peet v. Sherwood, 43 Minn. 447, 45 N. W. 859 ; Gauthier v. West, 45 Minn. 192, 47 N. W. 656; Roberts v. Kinnons, 65 Miss. 332, 3 S. 736; Fullerton v. Carpenter, 97 Mo. App. 197, 71 S. W. 98 ; Bruce v. Wolfe, 102 Mo. App. 384, 76 S. W. 723; Christensen v. Woolley, 41 Mo. App. 53; Ger- hart v. Peck, 42 Mo. App. 644 ; Holly v. Gosling, 3 E. D. Smith (N. Y.), 262; Egan v. Kiefordorf, 38 N. Y. S. 81, 16 Misc. 385; COMMISSION AND COMPENSATION OP AGENTS. 481 Find- v. Riner, 81 N". Y. S. 625, 40 Misc. 218; Doty v. Miller, 43 Barb. (N. Y.) 529; CusacJc v. Aikman, 87 N. Y. S. 940, 93 App. Div. 579; Strout v. Kenney, 107 N. Y. S. 92; Cox v. Hawke, 93 N. Y. S. 1117 ; Morgan v. C divert, 110 N. Y. S. 855, 126 App. Div. 327 ; Middleton v. Thompson, 163 Pa. St. 112, 29 A. 796; McLaughlan v. Wheeler, 1 S. D. 497, 47 N. W. 816; Sweeney v. Ten Mile Oil & Gas Co., 130 Pa. St. 193, 18 A. 612; Cheatha'm v. Yarbrough, 90 Term. 77, 15 S. W. 1076; Parker v. Walker, 86 Tenn. 566, 8 S. W. 391 ; Berg v. San Antonio St. R. Co., 17 Tex. Civ. App. 291, 42 S. W. 647, 43 S. W. 929 (T. C. A. '98), 47 S. W. 921; Hamberger v. Thomas (Tex. Civ. App. '09), 118 S. W. 770; Conklin v. Krakauer, 70 Tex. 735, US. W. 117; Green v. Lucas, 33 L. T. E. N. S. (Eng.) 584; Godley v. Haley, 27 Ohio Cir. Ct. 606; Bankers' Loan & Inv. Co. v. Spindle, 108 Va. 426, 625 E. 266; Pinkerton v. Hudson, 113 S. W. 35 (Ark. Sup. '08); John Reis & Co. v. Zimmern, 120 N. E. 692, 224 1ST. Y. 351, rev. judg., 156 N. Y. Sup. 327; Crum v. Blade & Bennett, 214 S. W. 441 ; Williams v. Atkinson, 214 S. W. 504, Tex. Civ. App. ; Brownell v. Hanson, 186 P. 873, Wash. ; B. J. & B. F. Camp Lumber Co. v. Tedder, 82 S. 865, Pla. Sup. ; Gilliam v. Jones, 225 S. W. 417, Tex. Civ. App. ; Morrow v. Gladhill, 111 A. 712, B. I. Sup. . Sec. 534. Where customer exercises right to withdraw if title defective, broker barred commissions. It has been held that if a customer reserves the privilege to withdraw from the transaction in case he finds the title de- fective upon examination, the broker is not entitled' to com- missions upon the refusal for that reason, by the customer, ex- ercising the reserved right, to complete the purchase. Conflict v. Cowdrey, 139 N. Y. 273, 34 N. E. 781 ; Crockett v. Grayson, 98 Va. 354, 36 S. E. 477 ; Blankenship v. Ryerson, 50 Ala. 426 ; Gilchrist v. Clarke, 86 Tenn. 583, 8 S. "W. 572; Johnson v. Sut- ton (Miss. Sup. '09), 49 S. 970; Arthur v. Porter (Tex. Civ. App. '09), 116 S. W. 127. See also Sec. 225. Sec. 535. Where broker is to have part of the profits on the sale, not entitled where it fails by defect in title. Where a broker agrees to sell land upon condition that the owner shall first make $500 out of the sale, the broker to have 482 AMEEICAN LAW EEAL ESTATE AGENCY. the rest of the profit as his commissions, he is not entitled to the commission for merely finding a .purchaser, upon a sale to such purchaser falling through on account of a defect in the title. Seattle Land Co. v. Day, 2 Wash. 27 P. 74. Compare Druker v. Gunn, 41 Kan. 496, 21 P. 637. See also Sec. 630. Sec. 536. Payment of commissions to broker may depend on the transfer of title. Where a broker's commissions were not to be paid for until and unless title passed and the purchaser failed to complete his purchase, no right to commissions accrued. Fittichauer v. Van Wyck, 92 N. Y. S. 241; Cooper v. O'Neill, 103 N. Y. S. 122, 53 Misc. 319; Bruce v. Drake, 70 S. 273, 195 Ala. 236; Cine v. Kell, 124 P. 548, 18 Cal. App. 675; John Reis Co. v. Zimmerli, 156 N". Y. Sup. 327, 170 App. Div. 502; Costa v. Schetz, 175 ET. Y. Sup. 476. See also Sees. 449, 458. Sec. 536a. Broker's compensation due on breach by vendor although postponed by contract till title passed. Where a real estate broker agreed that compensation should be paid when title passed, that stipulation merely fixed the time for the payment of commission, and the broker's right to the same could not be barred by the vendor's breach of contract. Rosen- thai v. Schwartz, 101 K B. 1070, 214 Mass. 371 ; Swee v. Neu- mann, 123 K Y. Sup. 776, 67 Misc. Eep. 605 (K Y. City Ct.) Broker having produced a purchaser able to buy and contract having been signed; held, entitled to commissions, in spite of agreement to wait for them until title passed. Salmon v. Mayer, 164 N. Y. Sup. 766. Sec. 537. Broker not entitled to commissions where customer refused to complete purchase on account of a supposed defect in the title. A land agent is not entitled to commissions or compensation for procuring a purchaser of a plantation, where it is shown that the intended purchaser declined to complete the contract, with- out fault or neglect on the part of the principal, on account of a supposed defect in the title. Blankenship v. Ryerson, 50 Ala. COMMISSION AND COMPENSATION OF AGENTS. 483 426; Oilchrist v. Clark, 86 Term. 563, 8 S. W. 572; Simrall v. Arthur, 13 Ky. L. R. (abst.) 682; Pfang v. Humberg, 30 Ohio Cir. Ct. R. 711; Willson v. Crawford, 130 S. W. 227, 61 Tex. Civ. Ap. 580; Leonard v. Vaughan & Co., 85 S. E. 171, 117 Va. 514, L. R. A. 1915 E, 714; Butte Land & Inv. Co. v. Williams, 173 P. 580, Mont. Sup. . Compare Sees. 460, 547a. See also Sec. 541. Sec. 538. Whether principal or another holds the title, broker on producing buyer entitled to commissions. Where one employs a real estate agent to find a purchaser for property which he represents as his own, and on the agent pro- ducing a purchaser ready, able and willing to pay the price, re- fuses to complete the sale, he is liable to the agent in an action for the usual commissions, whether the property belongs to him or to another. Stanton v. Barnes, 72 Kan. 541, 84 P. 116; Cook v. Plait, 126 Mo. App. 553, 104 S. W. 1131; Heimberger v. Rudd, 138 N. W. 374, 30 S. D. 289; Willner v. McDonnell, 185 N". Y. Sup. 837. Sec. 539. Where sale defeated by want of title, which he knew, broker barred commissions. Where the broker knew that the principal held only a mort- gagee's interest in the property, and might not be able to obtain title by foreclosure, the broker could not recover commissions for negotiations which were not completed because the principal did not obtain title through such proceedings. Corbin v. Mechanics' & Traders' Bank, 106 N. Y. S. 573, 121 App. Div. 744; Mont- gomery v. Amster (Tex. C. A. '09), 122 S. W. 307; Cain v. Min- norette, 162 N. W. 287, Mich. Sup. ; Gettlum v. Lewis, 172 K W. 387, Mich. Sup. ; Brownell v. Hanson, 186 P. 873, Wash. Sup. . Sec. 540. Ignorance of contract by holder of record title did not defeat broker's right to commissions. Where defendant, having an option on land, put it in the hands of plaintiffs, real estate agents, to trade, and they traded 484 AMERICAN LAW REAL ESTATE AGENCY. it with one who, as well as defendant, to the knowledge of both, had agreed to pay the commissions, their right to recover a commission of defendant is not affected by the fact that the owners of the record title of defendant's land, with whom plain- tiff claimed no contractual relations, did not know of the agree- ment as to the commission. Cook v. Plait, 126 Mo. App. 553, 104 S. W. 1131. See also Sec. 454. Sec. 541. Where broker produced a purchaser and a sale failed by a dispute over taxes, broker barred commissions. A broker is not entitled to commissions for procuring a pur- chaser of land, where the principal and the proposed purchaser failed to consummate the sale because of a dispute over taxes. Guthman v. Meyer, 63 N. Y. S. 971, 31 Misc. 810. See also Sees. 465, 33, 537. Sec. 542. After memorandum contract signed, and purchaser refused to pay water tax, broker entitled to commissions. Defendant employed plaintiff to procure a purchaser for certain property at a specified price; plaintiff secured a pur- chaser at the price; defendant received a payment down and signed a memorandum, expressing: the conditions of the agree- ment as to the terms and time of signing a formal contract, but at the agreed time she refused to sign the contract because the purchaser would not pay the water tax, which had then become a lien on the property. Held, that plaintiff was entitled to his commissions. Brand v. Nagle, 107 N. Y. S. 156, 122 App. Div. 490. See previous section. Sec. 543. Unavailing efforts to perform do not entitle a broker to commissions. A broker is entitled to no compensation unless a bargain be effected, and even in that event has no claim for reimbursement of his expenses. Didem v. Duralde, 2 Rob. (La.) 163; Sher- lurne Land Co. v. Ell, 92 Minn. 114. 99 N. W. 419; West v. Demone, 128 Mich. 1.1. 87 N. W. 95 ; Shapiro v. Nadler, 99 N. Y. S. 879, 51 Misc. 13 ; Schane v. Starch, 107 N. Y. S. 26, 56 Misc. 484; Ball v. Dolan (S. D. Sup. '08), 114 N. W. 998; Bailey v. Carlton, 43 Colo. 4, 95 P. 542 ; English v. W m. George COMMISSION AND COMPENSATION OF AGENTS. 485 Realty Co. (Tex. Civ. App. '09), 117 S. W. 996; Stevens v. Backer, 141 S. W. 1143, 162 Mo. App. 284; Norcott v. Franken- lerger, 191 111. App. 480 ; Ragmer v. HoUs, 146 P. 906, 26 Cal. App. 298 ; Harris v. Esperanza Mining Co., 109 A. 826, N. J. Eq. . See also Sees. 290, 309. Sec. 544. To entitle a broker to commissions for a sale his negotiations must be uninterrupted. To entitle a broker to commissions, where the contract con- cluded differs from that which the broker was authorized to negotiate, the negotiations commenced by the broker must have continued 1 uninterruptedly, and he must have been actively in- strumental throughout in causing the parties to consummate the transaction, and the sale made was satisfactory to the owners. Woods v. Stephens, 46 Mo. 555; Gold v. Sorrell, 26 N. Y. S. 124. A broker employed to procure a purchaser of realty for a fixed per cent, of the price, not specified, opened negotiations with a third person and introduced him to the owner. The third person never made any offer to the broker, and the owner refused to give the third person any price or terms, because others were then negotiating for the property. The broker made no further efforts to bring the parties together. Many months later the owner contracted a sale to the third person. Held, that the broker was not entitled to commissions. Wheeler v. Beers (Colo. Sup. '09), 101 P. 758. Sec. 545. Undisclosed agreement to divide commissions with purchaser, does not bar broker's right thereto. An agreement by real estate agents to divide their commis- sions with the purchaser of land, made without the knowledge of their principal, does not affect their right to recover the commissions which said principal agreed to pay. Scot t v. Lloyd, 19 Colo. 401, 35 P. 733; Lemon v. Lloyd, 46 Mo. Apr>. 452; Lawler v. Armstrong (Wash. Sup. '09), 102 P. 775; Chase v. Veal, 83 Tex. 333 ; 18 S. W. 597 ; Forst v. Farmer, 46 N. Y. S. 903, 21 Misc. 64. CHAPTER X. SECTION. 546. Broker not entitled to com- missions until he has performed his undertaking. 546a. In some States reasonable com- pensation may be recovered for partial performance of an entire contract. 547. Broker not entitled to com- missions for procuring contract subject to approval, which is withheld. 547a. Broker entitled to commission on alternative contract, which did not bind the buyer even although he approved the title. 548. Broker obtaining purchaser for vested remainder on different terms barred commissions. 549. Broker does not earn com- missions if contract to be void if first payment fails. 549a. Broker acquiring interest in purchase and contract beyond authority, the same is void. 550. Variance as to name of ranch sold did not deprive broker of right to recover commissions. 486 SECTION. 551. Broker not entitled to com- missions for contract too vague for enforcement, on failure of customer to take. 552. Withdrawal of land from sale entitled broker, under contract, to commissions. 553. Withdrawal and sale by owner in good faith to customer bars broker's commissions. 554. Principal paying commissions to broker before purchaser with- drawing cannot recover same. 554a. Owner allowed recovery of with- held money from brokers barred recovery of commissions paid. 555. Broker entitled to commissions where sale failed because rights of two heirs were not acquired. 556. Where purchaser is in default, broker not entitled to com- missions. 557. When commissions are earned by broker. 558. When commissions are not earned by broker. COMMISSION AND COMPENSATION OP AGENTS. 487 Sec. 546. Broker not entitled to commissions until he has performed his undertaking. A broker is not entitled to compensation until he has per- formed his undertaking. Ivy Coal Co. v. Long, 139 Ala. 535, 36 So. 722 ; Manly v. Turner, 13 Colo. App. 358, 57 P. 862 ; Cos- ton v. Quiniby, 178 Mass. 153, 59 1ST. E. 653, 52 L. E. A. 785; West v. StoecTcel, 6 Ohio Dec. (Rep.) 1082, 10 Am. L. R. 309; Ball v. Dolan (S. D. Sup. '08), 114 N. W. 998; Wiggins v. Wil- son, 55 Fla. 346, 45 S. 1011; Spilo v. Baumann-McWhirter Chemical Co., 157 N. Y. Sup. 521 ; Schano v. Starch, 137 N. Y. Sup. 26, 56 Misc. Rep. 484; Bledsoe v. Lombard, 194 S. W. 518, Mo. App. ; Thompson v. Ryan, 174 1ST. W. 15, mod. on re., 176 N". W. 275, Iowa Sup. ; Dunning v. Powell, 104 S. E. 73, K C. Sup. . If an entirety broker must show full performance, as a con- dition precedent. Mechem on Ag. Sec. 635. Sec. 546a. In some States recovery may be had for partial performance of an entire contract in an action for rea- sonable compensation therefor. In some States the doctrine of quantum meruit prevails to recover on failure to perform an entire contract the reasonable value of the services rendered Michigan, Iowa, Nebraska, Kansas, Texas, Indiana, Missouri and Mississippi. Mechem on Agency Sec. 637. Sec. 547. Broker not entitled to commissions for procuring contract subject to approval which is withheld. A broker is not entitled to a commission, where he procures a contract between the parties subject to approval, and that ap- proval has been withheld. Halprine v. Schachne, 54 N. Y. S. 1103, 25 Misc. 797 ; Hammond v. Crawford, 66 Fed. 425, 14 C. C. A. 109; Hamlin v. Schulte, 31 Minn. 486; Gough v. Coffin (Tex. Civ. App. '09), 120 S. W. 210; Oliver v. Sattler, 233 HI. 488 AMERICAN LAW REAL ESTATE AGENCY. 536, 84 N. E. 652; OUn v. Duclwrme, 106 A. 727, Vt. Sup. . See references under Sec. 307. Sec. 547a. Broker entitled to commission on alternative con- tract, which did not bind the buyer, even although he approved the title. That the agreement with the broker was in the alternative, and did not bind the buyer to buy even if he approved the title, would not defeat the broker's right to compensation, since it was the fact that the title was not clear to the purchaser that defeated the sale. Hamberger v. Thomas (Tex. Sup. '10), 126 S. W. 561. Compare Sec. 537. Sec. 548. Broker obtaining purchaser for vested remainder on different terms barred commissions. Where plaintiff Avas employed to sell a vested remainder owned by defendant for $55,000 net to the defendant, the pur- chaser to receive $175,000 if the life tenant should live less than ten years, and $195,000 if she should live more than eleven years, and the purchaser to be required to reassign to the de- fendant $10,000 if the life tenant should die within eleven years, $20,000, if within ten years, $25,000, if within nine years, and $28,000, if within eight years, and the purchaser accepted the proposition to buy, and instead of $195,000, with certain contingent sums to be reassigned on the death of the life tenant within ten years, not corresponding to those provided in the terms of the contract with plaintiff, he was not entitled to re- cover the agreed compensation for his services. Header v. Brown, 102 N. Y. S. 32, 116 App. Div. 734. See references under Sec. 307. Sec. 549. Broker does not earn commissions if contract to be void if first payment fails. A broker employed to effect a sale does not earn his com- missions by procuring one who enters into a contract with the principal which provides that the contract shall be void if the first of several payments of the price is not paid within the stipulated time. Ramsey v. West, 31 Mo. App. 676; Jones COMMISSION AND COMPENSATION OF AGENTS. 489 v. Eilenfelt, 28 Wash. 687, 69 P. 368; Edwards v. Baker, 180 P. 33, Cal. App. . See references under Sec. 307. Sec. 549a. Broker acquiring interest in purchase and con- tract beyond authority, the same is void. Where brokers in executing a contract for the sale of land did not follow their instructions contained in the option contract be- tween themselves and the owner, and also contracted with the purchaser for an interest in addition to their commissions, with- out the knowledge of the principal, the contract was void. Rob- ertson v. Allen, 184 P. 372, 107 C. C. A. 254. Sec. 550. Variance as to name of ranch sold did not de- prive broker of right to recover commissions. Where the plaintiff, in an action by a broker to recover com- missions, set out in haec verba the written contract, which spoke of the land as the "Abbey Kanch," the fact that the plaintiff showed where the land was situate did not create a variance be- tween the contract set out and the one pleaded in its legal ef- fect. Hill v. McCoy, 1 Cal. App. 159, 81 P. 1015. Compare Sec. 476. Sec. 551. Broker not entitled to commissions for contract too vague for enforcement on failure of customer to take. A real estate broker employed to sell property procured from a prospective purchaser the following signed memorandum : "I au- thorize Mr. M. to offer $220,000 for Mr. K/s house, corner of Sixty-fourth and Fifth Avenue, July 27, 1894, signed, J. T. Martin." Held, that it was at most a provisional proposition, leaving unexpressed essential details, and was to vague and uncertain to entitle a real estate broker procuring it to his com- missions from the vendor, where the proposed purchaser re- fused to complete the sale. Montgomery v. Knickerbacher, 50 N. Y. S. 128, 27 App. Div. 117. See also Sec. 556. 490 AMEBICAN LAW HEAL ESTATE AOBNOY. Sec. 552. Withdrawal of land from sale entitled broker, under contract, to compensation. By the terms of the contract of employment between the owners of land and a broker, commissions became due upon withdrawal of the property from sale within a certain time. Held, that the notice recited that it was 1 given under the con- tract by the owner to the broker not to sell said land, that it had been withdrawn from the market within that time, while the owner was repudiating a sale by the broker, was a withdrawal of the premises from sale by entitling the broker to his commissions, not as damages for a breach of the contract but as a debt. Maze v. Gordon, 96 Cal. 61, 30 P. 962; Gamble v. Cleveland Cliffs Iron Co., 158 Fed. 49, 89 C. C. A. 379. Com- pare Sees. 132, 585. See also Sec. 557. Sec. 553. Withdrawal and sale by owner in good faith to cus- tomer bars broker's commissions. A real estate broker is not entitled to commissions on a sale of property by the owner, after he has in good faith with- drawn it from the hands of the broker, at a time when no negotiations are pending, though the sale is made to one to whom the broker made an effort to sell. Stedman v. Richard- son, 100 Ky. 79, 18 Ky. L. K. 567, 37 S. W. 259. Sec. 554. Principal paying commissions to broker before pur- chaser withdrawing can not recover same. Where a principal pays a broker his commission before the purchaser withdraws from the transaction, the broker being entitled thereto will retain the same. Moore v. Irvin (Ark. Sup. '09), 116 S. W. 662; Conklin v. KraJcauer, 70 Tex. 735, 11 S. W. 117; Emerson v. Coddington, 55 N. Y. Super. Ct. 336. Except when the broker has acted in bad faith. Lockwood v. Halsey, 41 Kan. 166, 21 P. 98. COMMISSION AND COMPENSATION OP AGENTS. 491 Sec. 554a. Owner allowed recovery of withheld money from brokers barred recovery of commissions paid. Where an owner is permitted to recover from her brokers the amount they realized from an undisclosed offer above the amount of contract price, she can not also recover the commissions paid. Baldwin v. Lewis H. May Co., 181 N. Y. Sup. 121. Sec. 555. Broker entitled to commissions where sale failed because rights of two heirs were not acquired. Where a sale of land negotiated by plaintiff for defendant failed because the record did not show that the a defendant had acquired the alleged outstanding interests of two heirs in the land, plaintiff's right to recover commissions was not affected by the fact that at the time of the purchaser's refusal to accept title there was a will in existence under which defendant ac- quired full title to the property, and of which will none of the parties had knowledge. Weaver v. Richards, 144 Mich. 395, 108 N. W. 382, 6 L. R, A. N.S. 855. See Sec. 508. Sec. 556. Where purchaser is in default, broker not entitled to commissions. A contract for the purchase of real estate provided that the same should be void, at the will of the vendor, if default should be made by the vendee in completing the purchase by making the future cash payments and executing a mortgage for the balance of the purchase price, time being of the essence of the contract, $500 cash paid upon the execution to be forfeited by the vendee; a commission contract executed at the same time, provided that the vendor would pay the broker a certain sum if the contract of purchase should be performed by making the payments and executing the mortgage as provided. Held, that the vendee having failed to make the deferred cash payments and to execute the mortgage, the vendor having been ready, willing and able to perform the contract until such de- fault, could take advantage thereof, cancel the contract, and remove the cloud from the record by appropriate legal proceed- ings; under such circumstances the commission was not earned. 492 AMERICAN LAW EEAL ESTATE AGENCY. Van Norman v. Fitchett, 100 Minn. 145, 110 N". W 851 ; Jones v. Buck, 120 N. W. 112, judg. aff. on re., 126 N. W. 452, 147 Iowa, 494; Smith v. Post, 139 P. 283, 167 Cal. 796; Philips v. Brown, 120 P. 454, 21 Idaho, 62; Bailey v. Moorhead, 99 S. W. 39, 122 Mo. App. 268 ; Camp v. Dryer, 103 N. Y. Sup. 962, 119 App. Div. 134; Avola v. Oppenheimer, 153 N. Y. Sup. 421; Crook v. Trentman, 150 P. 1088, Okl. Sup. ; Cunningham v. Friendly, 139 P. 928, 70 Or. 222, re. den., 140 P. 989, 70 Or. 222; Griffith v. Bradford, 138 S. W. 1072, Tex. Civ. App. ; Oswald Realty Co. v. Broussard, 159 S. W. 153, Tex. Civ. App. -; Ennis & Dole v. Cater, 174 S. W. 947, Tex. Civ. App. ; Howell v. Bennett, 145 S. W. 535, 103 Ark. 629 ; Nutting & Co. v. Kennedy, 85 S. E. 767, 16 Ga. App. 569 ; Mason v. Miller, 179 111. App. 347; Biggs v. Turnbull, 66 A. 13, 105 Md. 135, 8 L. E. A. (N. S.) 824, 11 Ann. Gas. 783; Levy v. Sonnelorn, 138 K Y. Sup. 285, 78 Misc. Eep. 50 ; Scott v. Merrill's Est., 146 P. 99, 74 Or. 568; Kollman v. Brooks, 155 S. W. 1007, Tex. Civ. App. ; Yaughan v. Pleasanton, 71 S. E. 520, 112 Va. 508; Saunders v. Hackley & Hume Co., 208 S. W. 670, Mo. Sup. ; Hawkins v. Green, 104 S. E. 279, W. Va. Sup. . See also Sees. 179, 551, 363a. Sec. 557. When commissions are earned by broker. Where an agent, given authority to sell land, exercises his discretion as to price, examines the title, and fixes the price and terms, he may employ a real estate broker to find a pur- chaser, and a sale by him will be enforced, if he was required to obtain his commission in addition to the price agreed on, al- though the agent may have been requested by his principal not to employ a sub-agent. Renwick v. Bancroft, 56 Iowa, 527, 9 N. W. 367. One for whom a broker assumes to act, without authority, may, by accepting the benefits of the broker's services, ratify the act, and so make himself liable for compensation, provided the principal does so with knowledge that the broker assumed to act for him as such. Merrill v. Latham, 8 Colo. 263, 45 P. 524; Dayton v. Am. Steel Barge Co., 73 N. Y. S. 316, 36 Misc. 223; McKvnne v. Hope, 118 Ga. 462, 45 S. E. 413; Downing v. Buck, 135 Mich. 636, 98 N. W. 388 ; Hunt v. Jones, 105 Mo. App. 106, 79 S. W. 486 ; Charles v. Cook, 84 N. Y. S. 867, 88 COMMISSION AND COMPENSATION OP AGENTS. 493 App. Div. 81; Lyle v. Bennett, 70 N. Y. S. 283, 34 Misc. 476; Markham v. Washburn, 18 N. Y. S. 355; McCorrnack v. Mc- Caffery, 74 N. Y. S. 836, 36 Misc. 775; Twelfth Street Market v. Jackson, 102 Pa. St. 269; Graves v. Bains, 78 Tex. 92, 14 S. W. 256. Compare Sec. 587. A departure by a real estate agent from the terms of his authority is cured by the principal's subsequent ratification,, and the compensation fixed by the original contract of employ- ment controls. Qelatt v. Ridge, 117 Mo. 553, 23 S. W. 882. A broker employed to sell at a certain commission may employ a sub-agent for a share of the commission, and recover from his principal the commission agreed to be paid. Carter v. Web- ster, 79 111. 435 ; Boyd v. Watson, 101 Iowa, 214, 70 N. W. 120 ; Henning v. Burch, 90 Minn. 43, 95 N. W. 578 ; Corning v. Col- vert, 2 Hilt. (N. Y.) 56. A real estate broker who undertakes to furnish a purchaser is bound to act in good faith, and when one is presented, the employer is bound to accept him or to pay the commission, provided the customer is able, ready and willing to make the purchase on the terms stipulated. Coleman v. Meade, 13 Bush. (Ky.) 358; Barber v. Heade, 30 Ohio Cir. Ct. R. 127; Stewart v. Fowler, 53 Kan. 537, 36 P. 1002 ; Bach v. Emerich, 35 N. Y. Super. Ct. 548; Fraser v. Wychoff, 63 N. Y. 445; Dreyer v. Ranch, 42 How. Pr. (N. Y.) 22, 3 Daly, 434; Martin v. Billings, 2 City Ct. R, (N. Y.) 85; Pratt v. Patterson, 112 Pa. St. 475, 3 A. 858. In an action for a commission for selling property where it appeared that defendant gave plaintiff a written option to pur- chase land, it is competent to show a parol agreement by which the plaintiff was to find a purchaser and to receive as com- missions all realized on the sale above a specified amount, and that such option contract was executed for the convenience of plaintiff, and the broker was held entitled to recover his com- missions. Ricmer v. Rice, 88 Wis. 16, 59 S. W. 450. An agreement by real estate agents to divide their commis- sions with the purchaser of land, made without the knowledge of their principal, does not affect their right to recover the commissions which such principal agreed to pay. Scott v. Lloyd, 19 Colo. 401, 35 P. 733; Lemon v. Lloyd, 46 Mo. App. 452; 494 AMERICAN LAW HEAL ESTATE AGENCY. Chase v. Veal, 83 Tex. 333, 18 S. W. 597; Forst v. Farmer, 46 N. Y. S. 903, 21 Misc. 64. A broker may be entitled to compensation other than a com- mission; e. g., for finding a purchaser, to the reasonable; Haw- kins v. Chandler, 8 Houst. (Del.) 434, 32 A. 464; Beister v. Evans, 59 111. App. 181; McMurtry v. Madison, 18 Neb. 291, 25 N". W. 85; Donald v. Lawson, 87 1ST. Y. S. 485; Alexander v. Walcefield (Tex. Civ. App. '02), 69 S. W. 77; Hodges v. Bailey, 143 S. W. 92, 102 Ark. 200; or agreed value of the ser- vices rendered. Delaplaine v. Turnley, 44 Wis. 31. A broker may be entitled to a commission on a sale effected by the principal, without the broker's co-operation, if the con- tract so provides. Eeniwell v. Skelly, 130 Cal. 555, 62 P. 1067; Haskins v. Fogg, 60 N. H. 402. See also Sec. 552. If a broker merely brings together two parties who de- sire to exchange or sell their land, and his employment then ends, and the parties themselves settle the terms of the trans- action, he is a mere middleman and may recover a commission from each party, if each has agreed to pay him. Clark v. Allen, 125 Cal. 276, 57 P. 985; Manders v. Croft, 3 Colo. App. 236, 32 P. 836; Cox v. Haren, 127 Tnd. 325, 26 N. E. 822; Mutter v. Kutzleb, 7 Bush. (Ky.) 253; Rupp v. Sampson. 16 Gray (Mass.), 398; Montross v. Eddy, 94 Mich. 100, 53 N. W. 916; Ranney v. Donavan, 78 Mich., 318, 44 N. W. 276; Ch&ds v. Ptomey, 17 Mont. 502, 43 P. 714; Knauss v. Gottfried-Krueger Brewing Co., 142 N. Y. 70, 36 N. E. 867; Norton v. Genesee Nat. Sav., etc., Ass'n, 68 N. Y. S. 32, 57 App. Div. 520; Siegel v. Gould, 1 Lans. (N. Y.) 177; Bonwell v. Auld, 29 N. Y. S. 15, 9 Misc. 65; Balheimer v. Richardt, 55 How. Pr. 414; Havi- land v. Price, 26 N. Y. S. 757, 6 Misc. 372 ; Collins v. Fowler, 8 Mo. App. 588. See also Sec. 475. Where a contract is signed by the buyer and seller which contains stipulations by each in favor of the other of nearly equal value, the broker who brought them together is the proper custodian thereof, in the absence of other arrangements, and a delivery to the broker by each, after signing, amounts to a delivery to the other, and the final delivery by the seller to the broker completes the execution as a binding agreement, so as to entitle the broker to his commissions for finding a pur- chaser. Green v. Hollingshead. 40 111. App. 195. COMMISSION AND COMPENSATION OF AGENTS. 495 Where the minds of the vendor and the purchaser have met on a contract to sell real estate, the broker who procured the execution of such contract is entitled to recover his promised commission, notwithstanding any vagueness in the terms of the agreement. Folinsbee v. Sawyer, 36 N. Y. S. 405, 15 Misc. 293, 51 N. E. 994, 157 N. Y. 196. If the right to a commission is dependent upon the payment of the price by the purchaser, the broker must show either payment, Burnett v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775, or a tender thereof, or he is not entitled to a commission. Fiske v. Soule, 87 Cal. 313, 25 P. 430. Under a contract providing for the payment of commissions "at the date of the payment of the purchase price," or "in installments acording to payments by said purchaser," the bro- ker was entitled to his commissions on each partial payment, payment of commissions not being dependent on the payment of the entire purchase price, although the principal, a part owner, received no part of the payments. Frank v. Bonnevie, 20 Colo. App. 164, 77 P. 363. A proviso in a broker's contract that the commission shall be payable out of the first cash payment, is not a condition precedent to the broker's right to recover commissions, and does not mean that unless there is a cash payment, there is to be no commission paid. Finch v. Guardian Trust Co., 92 Mo. App. 263. The mere fact that the interest and insurance clauses in the contract of sale had not been definitely arranged before the day on which the contract was presented for signature, no objection being raised by the purchaser, will not deprive the broker of his commissions. Beebe v. Banger, 35 N. Y. Super. Ct. 452. And the broker does not lose his right to a commis- sion merely because the principal and the customer can not, in an agreement for an exchange, be brought to terms on a particular point, if they come to a general agreement. Wychoff v. Bliss, 12 Daly (N. Y.), 324. Compare Sec. 33. The right of a broker who has obtained a purchaser is not affected by the fact that the vendor did not understand the contract as written, where the broker himself was not guilty of fraud or deception. Bach v. Erne-rich, 35 N. Y. Super. Ct. 548; McKnight v. Thayer, 21 N. Y. S. 440. 496 AMERICAN LAW EEAL ESTATE AGENCY. The fact that the contract bound the purchaser only to forfeit a cash payment of $500 is immaterial, where it appears that a tender of the whole price was made by the purchaser to the vendor, who refused to convey the property, and the broker was entitled to recover commissions. Fiske v. Soule, 87 Cal. 313, 25 P. 430. There are cases holding, that if the negotiations between the principal and the customer continue uninterruptedly after the expiration of the time allowed the broker, and a sale is made of which the broker is the procuring cause, he is entitled to a commission, although the broker did not bring the parties to terms within the time limited in the contract of employ- ment. Griswold v. Pierce, 86 111. App. 406; Jaeger v. Glover, 89 Minn. 490, 95 N. W. 311 ; Goffe v. Gibson, 18 Mo. App. 1 ; Michaelis v. Gaeren, 41 N. Y. S. 563, 9 App. Div. 495, 75 N. T. St. 952; Vanderveer v. Suydam, 31 N. Y. S. 392, 83 Hun, 116; Shipman v. Wilkeson, 112 N. Y. S. 895; Moore v. Holman R. E. Co., 196 S. W. 479, Ark. Sup. . To be entitled to a commission where no sale is actually made, a broker employed to find a purchaser must either produce to the owner a customer who is able, ready and willing to buy on the terms prescribed by the owner, or else take from the cus- tomer a binding contract of purchase. Bingham v. Davidson, 141 Ala. 551, 37 S. 738; Sharpley v. Moody, 44 S. 650, 152 Ala. 549; Sayre v. Wilson, 86 Ala. 151, 5 S. 157 ; Crook v. Forst, 116 Ala. 395, 22 S. 540; Boy son v. Frink, 80 Ark. 254, 96 S. W. 1056; Gunn v. State Bank, 99 Cal. 349, 33 P. 1105; Hill v. McCoy, 1 Cal. App. 159, 81 P. 1015 ; Carlin v. Lifuer, 2 Cal. App. 590, 84 P. 292; Vandercook v. Wilmans (Cal. App. '06), 87 P. 1116; Shanks v. Michael, 4 Cal. App. 553, 88 P. 596; Coward v. Clinton, 122 Cal. 451, 55 P. 147 ; Quitzon v. Perrin, 120 Cal. 255, 52 P. 632; Zeimer v. Antisell, 75 Cal. 509, 17 P. 642; Hasten v. Griffing, 33 Cal. Ill ; Wagner v. Morris, 39 Colo. 106, 88 P. 973; Silberberg v. Chipman, 42 Colo. 20, 93 P. 1130; King Powder Co. v. Dillon, 42 Colo. 316, 96 P. 439; Ross v. Smiley, 18 Cola. App. 204, 70 P. 766; Buckingham v. Harris, 10 Colo. 455, 15 P. 817; Carter v. Owens (Fla. Sup. '09), 50 S. 641; Furlow \. Benoit (La. Sup. '09), 50 S. 785; Anderson v. Olsen (Minn. Bup. '10), 124 N. W. 3; Dotson v. Milliken, 27 COMMISSION AND COMPENSATION OP AGENTS. 497 App. Gas. (D. C.) 500, 209 U. S. 237; Jones v. Holladay, 2 App. Gas. (D. C.) 279; Wiggins v. Wilson, 55 Fla. 346, 45 S. 1011; Indian Trust Co. v. Sandlin, 125 Ga. 222, 54 S. E. 65; Phinzy v. Bush, 129 Ga. 479, 59 S. E. 259 ; Wood v. Broderson, 12 Idaho, 190, 85 P. 490; Mercy v. Whallon, 115 111. App. 435; Fox v. Ryan, 240 111. 391, 88 N. E. 974; Scott v. Stewart, 115 HI. App. 535 ; Lemon v. Carter, 116 111. App. 421 ; Whalen v. Gore, 116 111. App. 504; Newman v. Lumley, 125 111. App. 382; Oldham v. Howser, 125 111. App. 543 ; Waller v. Chambers, 128 111. App. 624 ; Packer v. Sheppard, 127 111. App. 598 ; Nolan v. East, 132 111. App. 634 ; Long v. Hand, 57 111. App. 134 ; Faber v. Vaugh- an, 108 111. App. 553; Kilpatrick v. McLaughlin, 108 111. App. 463; Jeffries v. Loving, 106 111. App. 380; Phillips v. Dow- fcower, 103 111. App. 50; Monroe v. Swow, 131 111. 126, 23 N. E. 401 ; Ward v. Lawrence, 70 111. 295 ; Fox v. Starr, 106 111. App. 273; Hanrahan v. Ulrich, 107 111. App. 626; Schmidt v. Keeler, 63 111. App. 487 ; Ispherding v. WoZ/, 36 Ind. App. 250, 75 N. E. 598; Prov. Trust Co. v. Darraugh, 168 Ind. 29, 78 N. E. 1030; Barnett v. Gluting, 3 Ind. App. 415, 29 N. E. 154, 927; Lockwood v. Rose, 125 Ind. 588, 25 N. E. 710; McFarland v. Lillard, 2 Ind. App. 160, 28 N. E. 229; Flynn v. Jordal, 124 Iowa, 457, 100 N. W. 326 ; Grieb v. Koefler, 127 Iowa, 314, 106 N. W. 113; Sherburne Land Co. v. Sexton, 130 Iowa, 85, 106 N. W. 378; McDermott v. Mahoney (Iowa Sup. ), 106 N. W. 925, 115 N. W. 32; McGuire v. Farber, 125 Iowa, 533, 101 N. W. 279 ; Tracey v. Forbes, 132 Iowa, 250, 109 N. W. 772 ; Clem- ents v. Stapleton, 136 Iowa, 137, 113 N. W. 546; Rounds v. Alee, 116 Iowa, 345, 89 N. W. 1098 ; Cassady v. Sealy, 69 Iowa, 509, 29 N. W. 432; Bird v. Phillips, 115 Iowa, 703, 87 N. W. 414 ; Long v. Thompson, 73 Kan. 76, 84 P. 552 ; Morris v. Fran- cis, 75 Kan. 580, 89 P. 901 ; Sandefur v. Hines, 69 Kan. 168, 76 P. 444; Coleman v. Meade CKy.), 13 Bush. 358; Guthrie v. Bright, 26 Ky. L. R. 1021,. 82 S. W. 985; Jacob v. Buchanan, 11 Ky. L. R. (abst.) 861; Curry v. Fetter, 15 Ky. L. R, (abst.) 494 ; Smith v. Lawrence, 98 Me. 92, 56 A. 455 ; Carnes v. Fow- anZ, 180 Mass. 569, 63 N. E. 122 ; Rice v. Mayo, 107 Mass. 550 ; E olden v. Starks, 159 Mass. 503, 34 N. E. 1069 ; Whitaker v. Engle, 111 Mich. 205 ; 69 N. W. 493 ; Hubbard v. Leiter, 145 Mich. 387, 108 N. W. 735; McDonald v. Smtih, 99 Minn. 42, 498 AMERICAN LAW EEAL ESTATE AGENCY. 108 K W. 291; Peet v. Sherwood, 47 Minn. 347, 50 K W. 241, 929; Rothschild v. Burritt, 47 Minn. 28, 49 N. W. 393; Awnabil v. Traverse Law Co. (Minn. Sup. '09), 121 N. W. 233; Huba- check v. Hazard, 83 Minn. 437, 86 N. W. 426; Fairchild v. Cunningham, 84 Minn. 521, 88 N. W. 15; Cullen v. Bell, 43 Minn. 226, 45 N. W. 428 : Enochs v. Paxton, 87 Miss. 660, 40 S. 14; Johnson v. Button (Miss. Sup. '09), 49 S. 970; Huggins v. Hearne, 74 Mo. App. 86; McCray v. Pfost, 118 Mo. App. 672, 94 S. W. 998; Morgan v. Keller, 194 Mo. 663, 92 S. W. 75; Veatch v. Norman, 95 Mo. App. 500, 69 S. W. 472; Sallee v. McMurray, 113 Mo. App. 253, 88 S. W. 157; Brown v. Smith, 113 Mo. App. 59, 87 S. W. 556 ; Butts v. Ruby, 85 Mo. App. 405 ; Finley v. Dyer, 79 Mo. App. 604 ; Hayden v. Grillo, 26 Mo. App. 289; Chipley v. Leuthe, 60 Mo, App. 15; Gelott v. Ridge, 117 Mo. 533, 23 S. W. 882 ; Goodson v. EmMeton, 106 Mo. App. 77, 80 S. W. 22 ; Harmon v. Enright, 107 Mo. App. 560, 81 S. W. 1180 ; Yoder v. White, 75 Mo. App. 155 ; Warren v. Cram, 71 Mo. App. 638; Siemson v. Homan, 35 Neb. 892, 53 N. W. 1012; Potvin v. Curran, 13 Neb. 302, 14 N. W. 400; Stewart v. Smith, 50 Neb. 631, 70 N. W. 235; Tracey v. Dean, 77 Neb. 382, 109 N. W. 505; Parker v. Estabrook, 68 N. H. 349, 44 A. 484; Courtier v. Lydecker, 71 N. J. L. 511, 58 A. 1093; Siblald v. Bethlehem Iron Co., 83 N. Y. 378 ; Bloodgood v. Short, 98 N. Y. S. 775, 50 Misc. 286 ; Moore v. Maguire, 98 N. Y. S. 752 ; Shapiro v. Nadler, 99 N. Y. S. 879, 51 Misc. 13; O'Toole v. Tucker, 40 N. Y. S. 695, 17 Misc. 554, 75 St. 101; Mwtin. v. Wermann, 95 N. Y. S. 284, 107 App. Div. 482 ; Miller v. B'arth, 71 N. Y. S. 989, 35 Misc. 372, 74 N. Y. S. 869, 36 Misc. 810; Allen v. James, 1 Daly (N. Y.), 13; Seidman v. Banner, 51 Misc. (N. Y.) 10, 99 N. Y. S. 862 ; Behrman v. Marcus, 102 N. Y. S. 467 ; Lovell v. Clench, 101 N. Y. S. 174, 115 App. Div. 635; McGill v. Gar- goula, 103 N. Y. S. 113; Rosenstcin v. Bogel, 108 N. Y. S. 957, 124 App. Div. 527 ; Willner v. Seale, 111 N. Y. S. 699, 127 App. Div. 180; Van Or den v. Morris, 18 Misc. (N. Y.) 579, 42 N. Y. S. 473; Moses v. Helmke, 41 N. Y. S. 557, 18 Misc. 357; Duclos v. Cunningham, 102 N. Y. S. 678, 6 N. E. 790; Miller v. Irish, 67 Barb. (N. Y.) 256; Smith v. Smith, 1 Sweeney (N. Y.), 552; Krahner v. Heilm.an, 16 Daly (N. Y.), 132, 9 N. Y. S. 633; Burling v. Gunthtr, 12 Daly (N. Y.), 6; Folinsbee v. COMMISSION AND COMPENSATION OF AGENTS. 499 Sawyer, 28 N". Y. S. 698, 8 Misc. 370; Barnard v. Monnott, 1 Abb. Dec. (N. Y.) 108, 3 Keyes, 203, 33 How. Pr. 440; Boyd v. Imp. Prop. Holding Co., 120 N. Y. S. 850 ; Verder v. Seaton, 83 N. Y. S. 159, 85 App. Div. 196 ; Dennis v. Charlick, 6 Hun (N. Y.), 21; Heinrich v. Kern, 4 Daly (N. Y.), 74; Levy v. Ruff, 22 N. Y. S. 744, 3 Misc. 14:7; Steinhouse v. Klueppel, 81 N. Y. S. 116, 80 App. Div. 445; Curtis v. Mott, 35 N. Y. S. 983, 90 Hun, 439; Folsom v. Lewis, 36 N. Y. S. 270, 14 Misc. 605; Mullenhoff v. Gender, 15 N. Y. S. 673; Raleigh, R. E. Trust Co., v. Adams. 145 N. C. 161, 58 S. E. 1008; Ward v. McQueen, 13 N. D. 153, 100 N. W. 253 ; Heintz v. Boehmer, 4 Ohio N. P. 226, 6 Ohio S. & C. P.. Dec. 362; Birch v. McNaught (Okla. Sup. '09), 101 P. 1049; Toder v. Randal, 16 Okla. 308, 83 P. 537, 3 L. R. A. N.S. 576 ; Ball v. Dolan, 18 S. D. 558, 101 N. W. 719; Mattes v. Enget, 15 S. D. 330, 89 N. W. 651; Howie v. Batrud, 14 S. D. 648, 86 N. W. 747 ; Ornyski v. Menger, 15 Tex. Civ. App. 448, 39 S. W. 388; Smye v. Groesbeck (Tex. Civ. App. '02), 73 S. W. 972; Brackenridge v. Claridge (Tex. Civ. App. '97), 42 S. W. 1005, reversed 91 Tex. 127, 144 S. W. 819; 43 L. R. A. 593; Hambergcr v. Thomas (Tex. Civ. App. '09), 118 S. W. 770; Baldwin v. Smith (Tex. Civ. App. '09), 119 S. W. Ill; Burnett v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775; O'Brien v. GiUiland, 4 Tex. Civ. App. 40, 23 S. W. 244; Reynolds-McGuinness Co. v. Green, 78 Vt. 28, 61 A. 556; Cooper v. Upton (W. Va. Sup. '09), 64 S. E. 523; Neely v. Lewis, 38 Wash. 20, 80 P. 175 ; Neely v. Schultz, 38 Wash. 699, 80 P. 176 ; Muir v. Moeller, 46 Wash. 601, 90 P. 1042 ; Barnes v. German Sav., etc., Soc., 21 Wash. 448, 58 P. 569 ; English v. Wm. George Realty Co. (Tex. Civ. App. '09), 117 S. W. 996; Little v. Fleischman (Utah Sup. '09), 101 P. 984; Frinck v. Gilbert (Wash. Sup. '09), 101 P. 770; Burden v. Briquilet, 125 Wis. 341, 104 N. W. 83 ; Arnold v. Nat. Bk. Waupaca, 126 Wis. 362, 105 N. W. 828, 3 L. R. A. N.S. 580; Oliver v. Katz, 131 Wis. 409, 111 N. W. 509; McArthur v. Slosson, 53 Wis. 41, 9 N. W. 784 ; Frost v. Houx, 15 Wyo. 353, 89 P. 568 ; McGavock v. Woodlief, 20 Howard (U. S.), 221; Brydes v. Clement, 14 Manitoba, 588. If the broker employed to find a purchaser brings to the owner a person who is able, ready and willing to buy on the 500 AMERICAN LAW REAL ESTATE AGENCY. owner's terms, lie is entitled to compensation, although he does not make or negotiate a binding contract of purchase. Buck- ingham v. Harris, 10 Colo. 455, 15 P. 817; Monroe v. Snow, 131 IU. 126, 23 N. E. 401; Ward v. Lawrence, 79 111. 295; Goodmanson v. Rosenstein, 114 111. App. 243; Fox v. Starr, 106 111. 273; Lockivood v. Rose, 125 Ind. 588, 25 N. E. 710; Burling v. Gunther, 12 Daly (N. Y.), 6; Folinsbee v. Sawyer, 28 N. Y. S. 698, 8 Misc. 370 ; Heintz v. Boehmer, 4 Ohio N. P. 226, 6 Ohio C. & C. PI. Dec. 362 ; Mattes v. Engel, 15 S. D. 330, 89 N. W. 651 ; Barnes v. German, etc., Sav. Soc., 21 Wash. 448, 58 P. 569; Brydes v. Clement, 14 Manitoba, 588; Marriott v. Brennan, 14 Ont. L. R. 508, 10 Ont. W. R. 159; Willwrd v. Wright (Mass. Sup. '09), 89 N. E. 559; Dean v. Williams (Wash. Sup. '10), 106 P. 130; Beongher v. Clark (Kan. Sup. '09), 106 P. 39; Simmons v. Oneth (Mo. App. '10), 124 S. W. 534; Wat- kins v. Thomas (Mo. App. '10). 124 S. W. 1063; Slayback v. Wetzel (Me. App. '09), 123 S. W. 982. A broker employed to sell lands, as distinguished from a bro- ker employed merely to find a purchaser, to be entitled to com- pensation, must effect a sale or procure from his customer a binding contract therefor. Ormsby v. Graham, 123 Iowa, 202, 98 N. W. 724. An offer to buy 290,000 feet of land, to be taken from a par- cel containing 500,000 feet, said 290,000 feet to be divided as to front and back lands from the whole parcel as nearly equal as possible, where accepted by the owner of the land, entitles the broker employed to find a purchaser therefor to his com- mission, and the owner will not be heard to say it is too in- definite. Monk v. Parker, 180 Mass. 246, 63 N. E. 793. Where the owner of property placed it with a real estate broker for sale, who accordingly advertised it, and the pur- chaser thus derived information that the property was for sale, and afterwards negotiated directly with the owner and pur- chased the property, the broker was entitled to his commis- sions. Kilbourn v. King, 6 D. C. 310; Tyler v. Parr, 52 MQ, 249 ; Bell v. Kaiser, 50 Mo. 150 ; Anderson v. Cox, 16 Neb. 10, 20 N. W. 10; Kiernan v. Bloom, 86 N. Y. S. 899, 91 App. Div. 429; Jackson v. Carrick, 25 Weekly Notes Gas. (Pa.) 132. There COMMISSION AND COMPENSATION OP AGENTS. 501 is authority to support the contrary doctrine. Charlton v. Wood, 11 Heisk. (Tenn.) 19. Where a broker employed to sell land negotiates unsuccess- fully with another broker, and the latter subsequently obtains authority from the principal under which he effects a sale, the fact that the broker after the sale was promised by the pur- chaser an interest in the profits of the land, in consideration that he should look after it, and try to effect a sale at an in- creased price, did not constitute him a purchaser so as to en- title the first broker employed to the commission. Donvitte v. Comstock, 110 Mich. 693, 69 N. W. 79. Plaintiff was employed by defendant to sell certain prem- ises, and procured a purchaser at ,$7,000, to be paid by the assumption of a first mortgage for $3,500, $2,500 in cash, and the giving of a second mortgage for $1,000, with interest at five per cent.; this offer was accepted and a written contract prepared, which provided that the $1,000 should be evidenced by a demand note; the purchaser declined to perform unless given six months within which to pay the latter amount; the owner refused to extend the credit longer than sixty days: it was held that under his agreement the purchaser was entitled to a reasonable time within which to pay such sum, and as his demand for six months was reasonable, plaintiff was entitled to commissions for the sale. Wendle v. Palmer, 11 Conn. 12, 58 A. 12. If the principal enters into a contract with the purchaser furnished by the broker, the principal will be held to have favorably determined the purchaser's responsibility and the commission is due, although the purchaser proves irresponsible. Stievel v. Lolly, 89 Ark. 195, 115 S. W. 1134 ; Wray v. Carpen- ter, 16 Colo. 271, 27 P. 248; Wriyht v. Brown, 68 Mo. App. 577; Brady v. Foster, 75 N. Y. S. 994, 72 App. Div. 416; Sobaje v. Schubert, 174 P. 364, Gal. App. . Compare Butler v. BaJcer, 17 B. I. 582, 23 A. 1019. As a slaughter house erected on the lot purchased is not shown to be a nuisance, and there is nothing in the letter or spirit of the contract to prevent the use of the lot for that purpose, defendant can not resist plaintiff's claim for commis- sions, because the lot is so used. Kavanaugh v. Bollard, 21 Ky. L. R. 1683, 56 S. W. 159. 502 AMERICAN LAW REAL ESTATE AGENCY. Where W. agrees, for a valuable consideration, to pay to a broker a certain sum in case either "W. or G. should "sell" the described premises, a bargain made by W., unaided by G., to sell the land, and a conveyance accordingly by himself and wife, was a sale within the meaning of the contract. Goward v. Wa- ters, 98 Mass. 596. An agent for the sale and management of the estates of ab- sent proprietors was held to be entitled to ten per cent, on all collections made by him and remitted, and to a per diem al- lowance for the days spent by him in the management of the estate. West N. J. Society v. -Morris, Peters (U. S. C. C.), 59. Under a contract by which defendant agreed to pay plaintiff a specified commission if he (defendant) succeeded in selling his land on certain terms to a person whom plaintiff had brought to him, plaintiff is entitled to the commission, whether the sub- sequent sale to that person was effected through plaintiff's ef- forts, or direct by defendant, or through the efforts of some third person. Gouge v. Hoyt, 127 Iowa, 340, 101 N. W. 463. Under a contract to pay plaintiff a certain commission on a sale of defendant's farm, or any part of it, at a certain price accepted by defendant, where plaintiff offered the farm to a party who subsequently bought it through another agency, plaintiff was not bound to actually make a sale to entitle him to a commission, since the contract merely implied an employ- ment to assist in making a sale. Terry v. Reynolds, 111 Wis. 122, 86 N. W. 557. A Frenchman residing in Iowa wrote to his neighbor, also a Frenchman and a land broker, who had gone on a visit to France, to procure him a purchaser for his farm at $4,000, for which he would allow him $200 brokerage. The broker was approached a year later by a Frenchman in New York who desired to purchase a farm. The broker took him to Iowa, showed him the farm in question, told the seller to be reason- able in his terms, and afterwards remarked to a witness that he had fetched the seller to terms. The purchaser took the land at $4,000. Held, that the evidence was insufficient to show that the broker was the agent of the buyer, and not of the seller, and that he was entitled to the agreed compensation of $200. Dubois v. Dubois, 54 Iowa, 216, 6 N. W. 261. COMMISSION AND COMPENSATION OP AGENTS. 503 An agreement by brokers affecting an exchange of lands that the owner of one piece shall pay no commissions until they have placed mortgages on the other piece, is merely a condi- tion, and the commission is one on the exchange, and not the result of the distinct transaction. Parker v. Merrill, 173 Mass. 391, 53 N. E. 913. Where a broker, having but a limited time within which to effect a sale, failed to do so within that time, and the prin- cipal declined to be further bound; and subsequently, the bro- ker sought to have him again consent to make the sale, and to induce him to do so agreed to charge less commissions than those contemplated, and thus procured the seller to consum- mate a sale, the commissions of the broker are to be charged under the new contract and not that originally made. Phinzy v. Bush, 129 Ga. 479, 59 S. E. 259. A broker who accomplishes the purposes of his agency in accordance with his instructions earns his compensation. Ear- vey v. Hamilton, 155 111. 377, 40 N. E. 592; Slotboom v. Simp- son Lumber Co., 136 P. 641, 67 Or. 516, Ann. Gas. 1915 C, 339, den. re., 115 P. 889, 67 Or. 516. Broker entitled to commission for purchaser procured by bro- ker's sub-agent with owner's knowledge. Bound v. Simkins, 151 S. W. 572; Strickland v. Fairfax, 65 S. E. 177, 110 Va. 142; Tilton v. James L. Gates Land Co., 121 N. W. 331, 140 Wis. 197. Where P. obtained a lease of certain land from defendant for the benefit of an undisclosed corporation, of which he was man- ager and for which he was acting, defendant's want of knowledge of the corporation was no bar to its subsequent right to recover commissions for the alleged sale of land through its efforts. Sat- isfaction Title & Inv. Co. v. York, 131 P. 444, 54 Colo. 566. The mere fact that plaintiff urged B. to look at defendant's farm, concerning which he already had full knowledge, did not constitute a "showing" of the farm to B. within the provisions of the contract obligating defendant to pay commissions in case of a sale to any person to whom plaintiff had shown the land. Winthrop Land Co. v. Utley, 125 N. W. 164, 146 Iowa, 310. Where plaintiffs were engaged to visit various towns and fur- nish defendants with information in regard to and to assist them 504 AMERICAN LAW EEAL ESTATE AGENCY. in procuring lots to be platted, the agency did not require plain- tiffs to make purchases or bring defendants into direct communi- cation with the owners of the land found. J. A. Dean & Son v. Goodrich, 140 N. W. 435, 160 Iowa, 98. Where defendant agreed to pay plaintiffs half the commission on a sale of any East Texas land to parties sent to defendant by plaintiffs, it was not necessary, to entitle plaintiffs to recover commission, that the purchaser sent to defendant intended to purchase a particular tract. Trice & Ludolph v. Cone, 163 S. W. 587, Tex. Civ. App. . Where broker sells lands on terms different from those in list agreement, the owner assenting to the sale on understanding that commission shall be different from that first agreed on, no com- mission, other than that fixed by new agreement, is recoverable. Paulson v. Reeds, 167 K W. 371, K D. Sup. . Where broker's commission is dependent upon certain condi- tions or contingencies, as upon a consummation of sale, or pay- ment of the purchase price or a specified part thereof, or a net price to the owner, these stipulations will govern, and a fulfill- ment of the prescribed conditions is generally essential to the right of recovery of compensation. Williamson R. E. Co. v. Sasser, 103 S. E. 73, N. C. Sup. . Sec. 558. When commissions are not earned by broker. Ordinarily a broker is not entitled to commissions for per- forming services which by the local custom are rendered gra- .tuitously. Courey v. Hoover, 10 La. Ann. 437. If a broker em- ployed to negotiate a loan abandons the employment he is not entitled to a commission on the transaction being afterwards effected. Everett v. Parrel, 11 Ind. App. 185, 38 K E. 872; Bouscher v. LarTcens, 32 N. Y. S. 305, 84 Hun, 288; Holley v. Townsend, 2 Hilt. (N. Y.) 34. See also Sec. 292. An agency to buy, sell exchange or lease property is revocable at any time before sale, unless coupled with an interest or given for a valuable consideration, and after his authority has been withdrawn a broker is not entitled to compensation for finding a purchaser. Brown v. Pfau, 38 Cal. 550; Young v. COMMISSION AND COMPENSATION OF AGENTS. 505 Trainer, 158 111. 428, 42 N. E. 139; Wilson v. Dyer, 12 Ind. App. 320, 39 N. E. 163; Kavanawgh v. Bollard, 21 Ky. L. R. 1683, 56 S. W. 159 ; Cadigan v. Crabtree, 186 Mass. 7, 70 N. E. 1033, 179 Mass. 474, 61 N. E. 37, 55 L. E. A. 77, 66 L. E. A. 982; West v. Dennis, 128 Mich. 11, 87 N. W. 95; Fairchild v. Cun- ningham, 84 Minn. 521, 88 N. W. 15; Kesterson v. Chauvranb (Mo. App. '02), 70 S. W. 1091; Green v. Wright, 36 Mo. App. 298 ; Vincent v. Woodland Oil Co., 165 Pa. St. 402, 30 A. 991. Where an agent's authority to sell lands is revoked, and; the owner in good faith thereafter sells upon less favorable terms to one who had declined to purchase from the agent, such agent is not entitled to commissions. Bailey v. Smith, 103 Ala. 641, 15 S. 900; UpJwf v. Ulrich, 2 111. App. 399; Blodgett v. Sioux City, etc., R. Co., 63 Iowa, 606, 19 N. W. 799 ; Gillett v. Corum, 5 Kan. 608; Stedman v. Richardson, 100 Ky. 79, 37 S. W. 259, 18 Ky. L. E. 567; Beeler v. Cresswell, 3 Md. 196; Cadigan v. Crabtree, 179 Mass. 474, 61 N. E. 37, 55 L. E. A. 77 ; Alden v. Earle, 4 N. Y. S. 548, 56 Super. Ct. 366 ; Mallonee v. Young, 119 N. C. 549, 26 S. E. 141; Neal v. Lehman, 11 Tex. Civ. App. 461, 34 S. W. 153; Corse v. Kelly (Kan. Sup. '09), 101 P. 1016. 1016; Ernst v. Ganahl, 137 P. 256, 166 Cal. 493. A broker who fails to procure a license to carry on his busi- ness, in most of the localities where that is required by law, can not recover commissions for acting as such. Whitfield v. Huling, 50 111. App. 179; Eckert v. Collot, 46 111. App. 361; Richardson v. Brix, 94 Iowa, 626; 63 N. W. 325; Young v. Denning, 52 Kan. 629, 35 P. 207 ; Buckley v. Humason, 50 Minn. 195, 52 N. W. 385 ; Johnson v. Rulings, 103 Pa. St. 498 ; Steven- son v. Emg, 87 Tenn. 46, 9 S. W. 230; Wicks v. Carlisle, 12 Okla. 337, 72 P. 377; Saule v. Ryan (Tenn. Ch. App. '99), 53 S. W. 977; Costello v. Goldbeck, 9 Phila, (Pa.) 158. Where a sub-agent conceals from the principal the fact that he is acting for the agent, the latter can not recover commis- sions. Mullen v. Bowen, 22 Ind. App. 294, 53 N. E. 790. If a broker employed to sell property, buys it for himself, and does this without the consent of his principal, he is not entitled to commissions. Finnerty v. Fritz, 5 Colo. 174; Ham- mond v. Bookwalter, 12 Ind. App. 177, 39 N. E. 872; Jansen v. Williams, 36 Neb. 869, 55 N. W. 279, 20 L. E. A. 207 ; Powers 506 AMERICAN LAW REAL ESTATE AGENCY. v. Black, 159 Pa. St. 153, 28 A. 133 ; Miller v. Holland, 1 Weekly Notes Gas. (Pa.) 36; Ryan v. Kahler (Tex. Civ. App. '98), 46 S. W. 71. All agreements between a real estate agent or broker and a proposed purchaser touching the subject matter of his em- ployment which are not disclosed to his principal should be scrutinized closely, and if not found compatible with entire in- tegrity and good faith toward his principal, they will defeat the agent's claim for commissions from his principal. Hobart v. Sherburne, 66 Minn. 171 7 68 N. W. 841. One employing a broker to sell property, without giving to him the exclusive right to sell, may negotiate a sale himself, and, if he does so without the agency of the broker, and be- fore the latter has procured a purchaser, he is not liable to the broker for commissions, although the broker produced a purchaser after a sale by the owner. Hill v. Jeff , 55 Ark. 574, 18 S. W. 1047; Waterman v. Boltinghouse, 82 Cal. 659, 23 P. 195 ; Dolan v. Scanlan, 57 Cal. 261 ; Doonan v. Ives, 73 Ga. 295 ; Curtis v. Wagner, 98 111. App. 345 ; Stewart v. Murray, 92 Ind. 543 ; Buck v. Hogeboom, 125 Iowa, 526, 90 N. W. 635 ; McClave v. Paine, 49 N. Y. 561 ; Brown v. Snyder, 68 N. Y. S. 224, 57 App. Div. 413; Chilton v. Butler, 1 E. D. Smith (N. Y.), 150; Scherer v. Colwell, 87 N. Y. S. 490, 43 Misc. 390; Harris v. Rogers, 15 N. Y. St. 396 ; Evans v. Gay, 38 Tex. Civ. App. 442, 74 S. W. 575. See also Sees. 142, 449. "Where a broker is instructed by his principal to ascertain the actual rentals of a property sought in exchange, and the agent procures an erroneous statement thereof, although believ- ing it to be true, where the principal relies on it and he con- tracts to exchange the property, but rescinds the contract on learning the facts, the broker is not entitled to compensation. Marcus v. Bloomingdale, 71 N. Y. S. 374, 63 App. Div. 227. A broker who is unsuccessful in effecting a transaction sub- ject to the approval of his principal, is not entitled to a com- mission upon a sale subsequently made by another broker. Ooin v. Hess, 102 Iowa, 140, 71 N. W. 218; Latshaw v. Moore, 53 Kan. 234, 36 P. 342 ; Walton v. N. O., etc., R. Co., 23 La. Ann. 398; Ward v. Fletcher, 124 Mass. 224; Donville v. Comstock, 110 Mich. 693, 69 N. W. 79; Thuner v. Ranter, 102 Mich. 59, COMMISSION AND COMPENSATION OP AGENTS. 507 GO N. W. 299; Wilson v. Alexander (Tex. Sup. '92), 18 S. W. 1057. Where a broker found a customer to whom the owner sold the property after the termination of the employment, the bro- ker was not entitled to a commission, where the broker found the customer previous to his employment, and the negotiations for the sale were conducted without his aid. Cushman v. Gori, 1 Hilt. (N. Y.) 356. See also Sees. 19, 21, 169, 454. Where a broker is, by agreement, to receive commissions for procuring a purchaser for land only on condition that a sale is made to a certain purchaser, he can not recover if a sale to such purchaser is not consummated, owing to the fault of either of the parties. Lyle v. Univ. Land, etc., Co. (Tex. Civ. App. '95), 30 S. W. 723. Where a vendor employs a broker to effect a sale of land, and, relying wholly on the broker does not exercise his own judgment as to the responsibility of a purchaser found and presented by the broker, but signs a contract of sale, which the purchaser is unable to carry out, the broker is not entitled to compensation. Butler v. Baker, 17 R. I. 582, 23 A. 1019. Com- pare Wray v. Carpenter, 16 Colo. 271, 27 P. 248; Wright v. Brown, 68 Mo. App. 577 ; Brady v. Foster, 75 N. Y. S. 994. 72 App. Div. 416. See also Sec. 464. If a broker releases his right to a commission in considera- tion that the principal would give him further business, the principal's failure to keep his promise does not entitle the bro- ker to recover the original renounced commission; his remedy, if any, is an action on the promise. Lindt v. Schlitz Brewing Co., 113 Iowa, 200, 84 N. W. 1059. See also See. 1073. A real estate broker's contract for commissions for the sale of land which provides that "when said land is sold" he shall have a certain per cent, of the price out of the first money col- lected, but which fails to give him exclusive authority to sell, does not entitle him to such commission on a sale made by the owner himself. Tracey v. Abney, 122 Iowa, 306, 98 N. W. 121. Defendant agreed to pay plaintiff certain compensation to sell his farm for $20,000, to be paid as follows: First mort- gage $5,000, second mortgage $2,500, the balance to defendant 508 AMERICAN LAW EEAL ESTATE AGENCY. in cash; the mortgages were made to secure bonds of defend- ant. Held, that plaintiff did not earn the compensation by the tender of a contract whereby the purchaser agreed to pay that portion of the price represented by the mortgages, "by assum- ing" these mortgages, in the absence of evidence that the mort- gages were not due and could not be paid. Schultz v. Griffin, 24 N. E. 480, 121 N. Y. 294. See references under Sec. 307. "Where one authorized to sell certain property within a speci- fied time, he to have a certain amount for procuring a pur- chaser or making a sale, notifies the owner within the time that he has secured a proposition on certain terms, at the price fixed, and the proposition is not accepted, he can not recover the agreed compensation, the customer being one with whom the owners had themselves been in treaty for the property for sev- eral months prior thereto, and who had that day made them an offer of the same amount. Hartley v. Anderson, 150 Pa. St. 391, 24 A. 675. See also Sees. 19, 21, 169, 454. Plaintiff claimed that defendant authorized him to sell a ten- acre tract for $17,000, and that he obtained a purchaser at that price. In an action for the commissions, plaintiff's al- leged purchaser testified that plaintiff offered him the land at that price; that he told plaintiff that he would take it, and to get an option on the property; when plaintiff returned and told him that defendant would sell only about nine acres, he told plaintiff to get an option on the best terms he could and he would consider it; an option was obtained on the nine acres but never accepted. Defendant's reason for not selling over nine acres was, that he wanted the balance for a street. "Wit- ness testified that he thought defendant intended putting a street through, and that he wanted the option to see if de- fendant would insist on it. Witness testified that he intended to take the land if he got the whole ten acres for the price named. Held, that a verdict should have been directed for defendant, on the ground that plaintiff did not obtain a purchaser. Hannan v. Fisher, 82 Mich. 208, 46 N. W. 225. See Sec. 33. A provision in a contract employing a broker to procure a purchaser before a certain date, of real estate, stipulated that if the premises were sold after such date on information from COMMISSION AND COMPENSATION OF AGENTS. 509 him he should receive commissions. The premises were sold subsequent to such date through other brokers for a Ies3 price. The purchaser learned that the property was for sale from the owner's attorney advertising the same. There was nothing to show that the broker started the negotiations be- tween the purchaser and owner, nor was there anything to show bad faith on the part of the owner. Held, that the bro- ker was not entitled to commissions. Shipman v. Wilkeson, 112 N. Y. S. 895. A real estate broker who expressly contracts to sell and con- vey for cash is not entitled to commissions by merely securing a competent person for the purchase of the land. Burnett v. Botts, 143 111. App. 160, affirmed 86 N. E. 258. See Sec. 449. The mere fact that real estate was sold to the person to whom a broker employed to procure a purchaser had five or six months previous to the sale given the information, without informing the owner or doing anything further to effect a sale, was not sufficient to entitle the broker to commissions. Waters v. Ra- falsky, 119 N. Y. S. 271. See Sees. 360, 471, 489. Where a real estate broker, who had been authorized to sell the timber of a tract of land merely informed the purchaser who had been negotiating with the owners for some time in regard to purchasing the land, that he had the land for sale, but did nothing further, and knew nothing of the subsequent negotiation which led up to the sale, which was not made un- til the vendor agreed that a mill and the down timber would be included, and also agreed to the purchaser's terms as to time of payment, the broker was not the efficient agent in or the procuring cause of the contract so as to entitle him to com- missions. Goff v. Hurst (Ky. Ct. App. '09), 122 S. W. 148. Broker held not entitled to commissions for effecting par- ties to consider an exchange, where they refused to sign the contract therefor. Reynolds v. Toch, 121 N. Y. S. 85. Defendant authorized plaintiff to sell certain property for her at $40,000. The best offer plaintiff obtained was $38,000, and the property was subsequently sold by a third person for $39,000. Held, that plaintiff did not produce a party willing, ready and able to purchase on defendant's terms, and could 510 AMERICAN LAW REAL ESTATE AGENCY. not therefore claim commissions. Senior v. Fitzgerald, 119 N". Y. S. 745. See also Sec. 426. A broker's commission was not earned on the theory that they had procured a binding contract, where it was not susceptible of specific performance, because providing that on non-performance the buyer should be subject to a forfeiture of the deposit. Os- wald Realty Co, v. Brouseard, 159 S. W. 153, Tex. Civ. App. ; Simpson v. Eardley, 137 S. W. 378, Tex. Civ. App. . Where in a contract of exchange one of the parties agrees to pay broker who is not a party thereto a commission, he may, if deal is not consummated because the other can not convey a good title, rescind the contract, and is thereby relieved of liability to pay commission. Brion v. Cahill, 165 P. 704, Cal. App. . A broker whose right to sell is limited to a specific time, and who effects no sale within that time, is not entitled to a commis- sion, though the owner later sells to the one with whom the broker has been negotiating, provided the owner does not fraudu- lently terminate the contract or prevent a sale by the broker. Langer v. Aycock, 209 S. W. 199, Tex. Civ. App. . PART V. PLEADINGS, PRACTICE AND JUDI- CIAL CONSTRUCTIONS AND INTERPRETATIONS. 511 CHAPTER I. SECTION. 564. Correspondence. 559. Doctrine of public policy. 565. Advancements. 560. Acquiescence and waiver and 566. The borrower. effect upon brokers' 567. Acceptances, rights. 568. Conformity. 561. Advertising and advertise- 569. Costs. ments. 570. Conditions precedent to right 562. Accord and satisfaction. to commissions. 563. Breach of contract. Sec. 559. Doctrine of public policy. Plaintiff entered into a contract with defendants whereby he was to have a certain commission for furnishing a purchaser for their mine; he furnished a purchaser, a sale was made, and defendant refused to pay the commission. Held, that the fact that plaintiff was employed by the purchasers to manage one of their mines, did not make him their agent in regard to the purchase, and he was not acting as agent for both parties to the contract so as to render his transaction void as against public policy. Owen v. Matthews, 123 Mo. App. 463, 100 S. W. 492. See also Sec. 454. Compare Sec. 405. The employment of the same broker by both parties, merely to bring them together, is not against public policy, and he may recover commissions from each. McLure v. Luke, 154 Fed. 647. See also Sees. 475, 578. A contract whereby a broker for the purchaser was to secure his commission from the vendors is not contrary to public policy, if the vendors understood that the broker was representing the purchaser. Foss v. N. Y. Gen. & H. R. R. Co., 146 N. Y. Sup. 930, 161 App. Div. 681, judg. aff., 112 N. E. 1059, 217 K. Y. 727. An agreement between a broker employed to procure a pur- chaser of real estate and a prospective purchaser binding the broker not to procure any other customer, and binding the pur- 513 514 AMERICAN LAW BEAL ESTATE AGENCY. chaser, in consideration thereof, to pay, if he purchases, to the hroker, a specified commission, is contrary to public policy, and is not enforceable on the purchaser acquiring the premises. Edbinowitz v. Pizer, 108 N. Y. S. 994. Although one of the principals may have known of the double agency of the broker, and the transaction was advantageous to said principal, the act is against public policy and bars re- covery of commissions. Conwell v. Smith, 142 Pa. St. 25, 21 A. 793, 12 L. R. A. 395 ; Chapman v. Currie, 51 Mo. App. 40 ; Lightcap v. Nicolai, 34 Pa. Super. Ct. 189; Sumner v. Dires- kiawicz (Conn. Sup. '09), 74 A. 906. See also Sec. 706a. A contract of the purchaser Avith the seller's broker to convey to the latter a part of the land bought, is unenforceable as against public policy. Smith v. Townsend, 109 Mass. 500. A broker who is employed to exercise his abilities on behalf of his principal can not, without his principal's knowledge, agree to represent the other party to the transaction; such agreement being contrary to public policy and unenforceable, though the original principal was not injured; the agent in- tended no wrong, and the other party acted in good faith. Bass v. Tolbert (Tex. Civ. App. '08), 112 S. W. 1077. Where an agent for the sale of land agrees with another, that the latter shall purchase it for their joint benefit, and con- ceals such sale from his principal, the contract by the purchaser to account to the agent for the profits is violative of law, con- trary to public policy, and unlawful, under Civil Code, Section 1067, declaring unlawful that which is contrary to law, public policy, or good morals. Butler v. Agnew, 9 Cal. App. 327, 99 P. 395. See also Sec. 522. A broker employed to procure a purchaser of real estate for a specified sum, on specified terms, for an agreed commis- sion, interested a third person in the premises. The third per- son requested the broker to do nothing further, but to permit the third person to deal directly with the owner. The third person promised to pay the broker a commission if he pur- chased. The said third person subsequently purchased the prem- ises from the owner. Held, that the broker was entitled to re- cover from the third person the agreed commission, for the con- tract did not rest on an immoral consideration, though no notice PLEADINGS, PBACTICE, ETC. 515 thereof was given to the owner. Siegel v. Rosenzweig, 114 N. Y. S. 179, 129 App. Div. 547. Any money received by a broker employed to sell land from a purchaser belongs to the principal, since an agent will not be permitted to derive profit from the subject matter beyond his lawful compensation. Metschan v. Swensson (Or. Sup. '09), 99 P. 277 ; Messer R. E. & Inv. Co. v. Ruff, 64 S. 51, 185 Ala. 236; Harwi v. Morton, 186 P. 740, Kan. Sup. . A broker who had a contract for an agency for the sale of land can not recover damages from the landowner who refused to go on, where the broker retained moneys collected from pur- chasers in excess of the expenses incurred and the damages he suffered by reason of loss of time. Whitcomb v. Sayer, 144 P. 922, 82 Wash. 572. A broker to sell property has no inherent right to receive part payment or earnest money from the purchaser. Roseer v. Levi, 210 S. W. 314, Tex. Civ. App. . Where a real estate owner fixed his own price on the prop- erty and employed a broker to secure an acceptance of his prop- osition merely, not the best price he could obtain, he can not require the broker to account for money received by him from the broker for the other party on a division of the latter 's com- missions. Law v. Ware, 238 111. 360, 87 N. E. 308. Under an ordinary agency for the sale of land for the high- est price possible, it is contrary to public policy for an agent, without the consent of the principal, to accept compensation from the purchaser. Aikin v. Poffenberger (Tex. Civ. App. '09), 116 S. W. 615; Keitt v. Gresham, 174 S. W. 884, Tex. Civ. App. ; Twiss v. Herbst, 111 A. 201, Conn. Sup. . Where one engages to negotiate for the purchase of land, and is informed by the principal that he desires to purchase two ad- joining tracts to make one property of them, the agent can not negotiate a purchase on his own account of one of the tracts and hold it against the interest of his principal, it being sufficient that he undertook the negotiations and held a situation of trust with reference to procuring the land. Rogers v. Genung (1ST. J. Err. & App. '09), 74 A. 473. In all cases the principal is entitled to the best and unbiased judgment of his agent, and public policy forbids the agent to 516 AMEEICAN LAW EEAL ESTATE AGENCY. assume a relation creating a departure antagonistic to his duty. Scott v, Kelso, 130 S. W. 612, 62 Tex. Civ. App. 163; Mass v. Tolbert, 112 S. W. 1077, 151 Tex. Civ. App. 437. Plaintiff, a real estate broker, was employed by defendant to effect an exchange of certain real estate, and having obtained a prospective purchaser, accepted an employment by him also to effect an exchange. The exchange having been accomplished, plaintiff sued defendant for commissions, and the broker, exam- ined as a witness for plaintiff, testified that he knew that the main question with defendant in making the exchange was to pay as little cash as possible, and that it was the witness's duty to get an exchange for defendant with the least cash payment possible; that he was also employed by the other man, and knew that he wanted all the cash he could get, and was going to pay the broker to get all the money possible for him; held, that such evidence indicated a conflict of duty on the broker's part as be- tween the two parties to the exchange, which was contrary to public policy, and constituted a complete defense to defendant's liability for commissions. Jacobs v. Beyer, 125 N". Y. Sup. 597, 141 App. Div. 49. It is a rule of public policy that an agent for the sale of property can not, at the same time, act as the agent for the pur- chase thereof, and thus become entitled to compensation from both vendor and purchaser. This rule may be waived by an ex- press agreement between the parties, but such agreement can not be inferred either from knowledge of the fact that the rule had been violated, or from silence or failure to dissent at the time, or from all these combined. Nothing short of clear and satisfactory proof of an express agreement to waive the rule can be regarded as sufficient for that purpose. Evans v. Rockett, 32 Pa. Super. Ct. 365. Where a broker sells property and receives an advance pay- ment of $500 on the property, and the purchasers are unable to get a good title or to obtain specific performance, and the broker has not paid the money over to his principal, the purchasers can recover the money, regardless of the broker's right to commis- sions. Gosslin v. Martin, 107 P. 957, 56 Or. 281. Where a realty broker was to receive commissions from both parties, though one knew the fact, that his contract to pay com- PLEADINGS, PRACTICE, ETC. 517 mission to broker was against public policy and void, so that note given in consideration thereof was invalid. Glenn v. Rice, 162 P. 1020, Cal. Sup. . Contract whereby realty brokers having exclusive sale of land at $50 an acre permitted other brokers to sell to one of their customers if they would pay him half of all made on sale for any amount above price at which land was listed, was not against public policy, and was no violation of the broker's duty to the owner. Conway v. Burk, 171 N. W. 84, S. D. Sup. . Sec. 560. Acquiescence and waiver, and effect upon broker's rights. Where the vendor and a proposed purchaser disagree as to the terms of sale, and the broker, who is present, acquiesces in the inability of the parties to complete the contract, and the owner afterward places the property in the hands of another agent, who sells it on practically the same terms to the pur- chaser secured by the first agent, unless fraud or bad faith be shown, the first broker is not entitled to compensation. Girar- dieu v. Gibson, 122 Ga. 313, 50 S. E. 91. Where a real estate broker made a contract for the sale o.f land which contained an agreement that possession should be given in ninety days, and this agreement was beyond his au- thority, but his principal conveyed the land to the vendees, they accepting an allowance on account of the delay beyond ninety days in giving possession. Held, that by making settle- ment with the principal, the vendees lost their right of action against the brokers because of the breach of an unauthorized agreement. Hopkins v. Everly, 150 Pa. St. 117, 24 A. 624, 30 Weekly N. Cases 393. An owner employed a broker to procure a purchaser and agreed to pay him a commission on the purchaser paying more than a specified sum; a purchaser could not be induced to pay more than that sum; the owner, with the knowledge of the broker, made the sale at the highest price obtainable; there was no secret dealing between the owner and the purchaser, and the broker did not object to the sale. Held, that the broker was not entitled to a commission, on the theory that there was 518 AMERICAN LAW KEAL ESTATE AGENCY. a waiver on the part of the owner of the stipulation as to price. Ball v. Dolan (S. D. Sup. '08), 114 N. W. 998. See also Sec. 482. Where M., who was to receive a. commission for a sale of B.'s land, turned over the sale of the land to L., agreeing that L. should have the commissions therefor, to which B. consented before a sale was made, L., on selling the land, was not entitled to the commissions as the assignee of M., but because he, with the knowledge and consent of B., sold the land after M. had waived his right to do so. Munson v. Mdbon, 135 Iowa, 335, 112 N. W. 775. Where a written contract employing plaintiff as broker to sell defendant's land provided for a certain cash payment by any purchaser that might be secured and fixed the price at which defendant would sell, refusal by defendant to accept an offer to buy at that price was a waiver of any right which defendant might otherwise have had to require a prospective purchaser to make a tender in cash of the down payment. Mc- Dermott v. Mekonev (Iowa Sup.), 106 N. W. 925, 115 N. W. 32, 139 Iowa, 292 ; Moore v. Boehm, 91 N. Y. S. 125, 45 Misc. 622. Where a broker is authorized to procure a purchaser of land within a certain time, but the owner waives the performance of the contract within the time agreed and accepts the services of the broker and treats the contract as in force, the broker will be entitled to compensation when he procures a purchaser. Ice v. Maxwell, 61 W. Va. 9, 55 S. E. 899. K. employed land brokers to procure a purchaser for his land ; a condition of the employment was that if he sold the land without the intervention or assistance of the brokers they would not be entitled to commissions; M. sold independently of the brokers, although before negotiations were completed the bro- kers furnished a purchaser. It was held that they had, by the contract, waived their rights, and were not entitled to a com- mission. Robinson v. Kindley, 36 Kan. 157, 12 Pac. 587. Where a landlord accepted the waiver of a tenant's privi- lege of renewal, procured by his agent from the tenant, and acted upon the same, he was estopped to deny the agent's au- thority in the premises. Madison Ave. v. Osgood, 18 N. Y. S. 126. Where a broker was told by the principal that he must look PLEADINGS, PRACTICE, ETC. 519 to the intending purchaser for his compensation, he can not recover his commissions from the principal. King v. Benson, 22 Mont. 256, 56 P. 280. Compare Sec. 19. Under an agreement to pay a broker a commission for pro- curing a purchaser within a specified time, to earn the com- mission he must produce within that time a customer ready, able and willing to purchase on the stipulated terms; but the commission is earned if the customer is willing to purchase on different terms, and the variance is waived by the principal, or if a suitable customer is produced, but not within the time limited, owing to a delay caused by the principal, there being no implied promise to pay a commission if, at a time subse- quent to the time limit, the property is sold to one introduced by the broker. Brown v. Mason (Cal. Sup. '09), 99 P. 867. Where a broker employed to procure a purchaser attempted, after the expiration of the time fixed for performance, to find a purchaser, and the owner, knowing thereof, made no objec- tion, but encouraged him to proceed, and a purchaser was pro- cured, the owner waived the time limit and the broker was entitled to his commissions. Stiewel v. Lolly, 89 Ark. 195, 115 S. W. 1134. See also Sec. 42. Where a principal knows that his agent is representing both parties, it is not necessary to disclose such fact to the prin- cipal to entitle the broker to his commissions. Arthur v. Porter (Tex. Civ. App. '09), 116 S. W. 127. Where a contract declared on and exhibited with the com- plaint, in an action by a broker for commissions, did not con- tain a time limit for performance, but referred to a power of attorney executed by the owner to the broker which contained a time limit, and the owner admitted the execution of the con- tract, but alleged that it was not in force at the time of the sale, the question whether the contract was in force at that time was in issue, and under it the broker might prove a waiver by the owner of the time limit in the power of attorney. Stiewel v. Lolly, 89 Ark. 195, 115 S. W. 1134. A contract provided that certain land should be left with plaintiff for sale for two weeks, and until written notice of withdrawal. The broker failed to sell the land within the two weeks, and verbally acquiesced with the owner that his time to 520 AMERICAN' LAW REAL ESTATE AGENCY. make a sale had expired, and stated that there was no use in destroying the contract, which defendant wanted to do, and neither party acted further thereunder. Held, that the broker had waived written notice of withdrawal, thereby terminating the contract at the expiration of the said two weeks. Bird v. Webber (Okla. Sup. '09), 101 P. 1052. The right to recover for services in procuring purchasers for lands was not waived by the fact that after plaintiffs found that defendants did not own or control the land, they demanded a return of the money advanced by the purchasers. Peavey v. Greer (Minn. Sup. '09), 121 N. W. 875. Where a broker performed services towards leasing prop- erty, but before he had leased it, he told the owner that he would charge him nothing for his services, he was entitled to no compensation, either for subsequent or the prior services, whether the prior services were rendered without a contract therefor, or under the contract to effect the lease, in which latter case no commission would be earned till the lease was effected. Strickland v. Fairfax (Va. Sup. '09), 65 S. E. 477. The commissions of a broker who acquiesced in the reduc- tion of the price from the original terms is based on the ac- tual price received. Bauersmith v. Min., etc., Co., 146 Fed. 95. A broker had attempted to exchange defendants' property, and had announced that he expected two and one-half per cent, commission. Less than a week afterward, the deal having fallen through, the broker wrote to defendants: "Now, I have a trade for you and am willing to give you all there is in it," and stated : "I will give you his place clear and $2,000 cash for your place clear. * * * I would want possession of your place this spring, and you could have possession of the other." The place referred to belonged to the broker's brother in another State, who wished to move to the residence of the broker, and the broker had no interest in the land, and nothing to give in the transaction other than his commissions. In a subsequent letter the broker said: "I am willing to give you all there is in it, as we would rather have our holdings here," and ''should I get the place I would prefer it not rented until my brother comes and decides what he wants to do. " Held, that the letters showed that the broker was not acting for defendants but was either PLEADINGS, PRACTICE, ETC. 521 acting for himself or for his brother and proposed to waive his commissions if the exchange were consummated. Big Four Realty Co. v. Clark (Mo. App. '09), 123 S. W. 95. If owner was dissatisfied with purchasers procured by broker he should have notified broker, or have declined to enter into a contract with purchasers, but having accepted the purchasers after being misled by brokers, he is bound to pay broker a com- mission. U. S. Farm Loan Co. v. Darter, 183 P. 696, Cal. App. . Where broker's agreement to sell land was completed when owner told him he would pay a less commission than that agreed on, and no more, and all that remained to be done was to put the agreement of sale with the purchaser procured in writing, the broker did not waive his right to the first agreed commission b} 1 " merely remaining silent. Gardner v. Buschler, 111 A. 589, Conn. Sup. . The owner's statement to the brokers that the latter had earned their commission, made while negotiations were still pending with the broker's customer, expressed no intention to relinquish their right to resist payment of the commission if the customer was not willing to take the property under the terms stated to the broker, and therefore did not waive that right. Brown & Fen- wick R. E. & Ab. Co. v. Narks, 226 S. W. 55, Mo. App. ; Meachem v. Baker, 226 S. W. 967, Mo. App. ; Wetter v. Phillip Gross Realty Co., 180 K W. 927, Wis. Sup. . Sec. 561. Advertising and advertisements. In a contract to pay for the services of a real estate broker in " showing and advertising" land, the term "advertising" must be construed as meaning the publication of a notice in a newspaper, or otherwise, of the fact that the land is for sale. Darst v. Doom, 38 111. App. 397. An advertisement put upon land as for sale by an agent is insufficient to imply power in such agent to make a sale thereof, when the owner denies conferring such power. Mortimer v. Corn- well, 1 Hoffm. (N. Y.) Ch. 351. The expenses incurred by a broker in advertising and selling a client 's land, are not elements of damages, in an action to recover commissions alleged to have been lost by his client's refusal to convey to the purchasers 522 AMERICAN LAW EEAL ESTATE AGENCY. whom the broker had obtained. Burnett v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775. See also Sec. 309. A broker's advertisement which brought a purchaser, who bought from the principal, entitled the broker to his commissions. Kilbourn v. King, 6 D. C. 310; Tyler v. Parr, 52 Mo. 249; Bell v. Kaiser, 50 Mo. 150; Anderson v. Cox, 16 Neb. 10, 20 N. W. 10; Kiernan v. Bloom, 86 N. Y. S. 899, 91 App. Div. 429; Jackson v. Car- rick, 25 Weekly Not. Gas. (Pa.), 132; Mallom v. Barrett, 192 Mass. 552, 78 N. 7. 560; Lord v. U. S. Transp. Co., 128 N. Y. Sup. 451, 143 App. Div. 437 ; Maloom v. Barrett, 78 N. E. 560, 192 Mass. 552. In another case, where a sale was made by the principal to one who derived his information that the farm was for sale from the broker's advertisement, he was denied a recovery of commis- sions. Charlton v. Wood, 11 Heisk. (Tenn.), 19. A real estate broker suing for commissions may testify that he advertised the land in a certain newspaper, no effort being made to prove in this manner the terms or contents of the ad- vertisement. Yarborough v. Creager (Tex. Civ. App. '03), 77 S. W. 645. Where a broker, noticing defendant's advertisement of his house, wrote defendant that he had prospect for such property, and requested terms, and after defendant sent the terms, such broker wrote owner of his prospects concerning the same, but was informed that the prospect was not interested ; held, that where the prospect thereafter was interested in the property by an ad- vertisement of the owner and purchased it, the negotiations being conducted between the principals, the broker was not entitled to any commission. Raynor v. ReinJiard, 180 N. Y. Sup. 690. Sec. 562. Accord and satisfaction. Where there was a bona fide contention between a broker and his principal as to whether the broker should be charged with the loss of a certain sum, and the broker retains and uses a check from the principal for the commissions due him, less said loss, expressed to be "in full settlement," an accord and satisfac- tion is established, which is a valid defense to an action by the broker for the balance of his commissions. Vorhis v. Elias, 56 N. Y. S. 134. PLEADINGS, PRACTICE, ETC. 523 Finding that broker's acceptance of a check given for com- missions stated on its face "in full of all demands/' did not con- stitute an accord and satisfaction; held, sustained by the evi- dence, showing concealment by the owner as to whom he sold the property, and indicating bad faith on the part of the owner to deprive the broker of his commission. Elser v. Hughes, 183 111. App. 18. Sec. 563. Breach of contract. If a sale of land by the owner effects a breach of the contract with the agent, an action by the latter should be based on such breach, and not on a performance of the contract. Metzer v. Wyatt, 41 111. App. 487; Alder son v. Houston, 96 P. 884, 154 Cal. 1. Where a party under a contract is to secure for a second party options on certain properties, and the second party di- rects him not to proceed with reference to securing an option on one of the properties, this is a breach of the contract for which the second party is liable in damages. Worthington v. McGarry, 149 Ala. 251, 42 S. 988. A contract giving an agent the exclusive authority to find a purchaser for a farm within a given time, but not negativing the right of the principal to sell the property himself, is not breached by a sale by the owner at public auction, through the medium of an auctioneer acting under his immediate direction. Ingold v. Symonds, 134 Iowa, 206, 111 N. W. 802. The broker's right to a commission is not affected by a sub- sequent breach by either party not caused through his fault. Parker v. Walker, 86 Tenn. 566, 8 S. W. 391 ; Hannon v. Moran, 71 Mich. 261, 38 N". W. 909 ; Tilton v. James S. Gate Sons Co., (Wis. Sup. '09), 121 N. W. 331; Hayes v. McArs, 131 N. W. 535, 166 Mich. 198. Where the contract employing a broker to procure a purchaser stipulates that commissions should be paid only when a sale is effected, the broker is not entitled to commissions unless a sale is effected, though he may be entitled to damages for the wrongful act of the owner in preventing a sale. McDermott v. Mahoney (Iowa Sup. '08), 115 N. W. 32, 139 Iowa, 292; Boddy v. Brummett & Ellis (Tex. Civ. App. '08), 110 S. W. 532. 524 AMERICAN LAW REAL ESTATE AGENCY. A real estate agent who has obtained a purchaser for prop- erty placed in his hands to be sold at a certain price, the sur- plus to go to the agent as his commission, can not recover for a breach of the owner's contract to convey the property a sum paid to the owner to induce him to comply with the contract, in addition to the commission he would have received had the sale been consummated. Cornell v. Hanna (Kan. App. '98), 53 P. 790. Where plaintiff, desiring to purchase a certain tract of land, went to real estate agents, and they informed him they had a letter from the owner in which she offered the tract at $1.700, and that they would endeavor to procure it for him for $1,760, $100 to be paid down, and the balance to be paid as soon -as the deed could be procured; but when the owner was informed of the transaction she refused to take less than $2,000 ; the real estate agents, having acted in good faith and done all in their power to procure the title of the land, were liable only for the return of the $100 paid, and not for damages for a breach of the contract. Kroeger v. Good, 13 Idaho, 184, 89 P. 632. In action for damages for revocation of authority to sell land, nothing more than nominal damages can be recovered, where the agent fails to show that he could have made a sale on the principal's terms. Mulligan v. Owen, 123 Iowa, 285, 98 N. W. 792. Where a firm of two members contracted to manage and sell lots of a corporation at a town other than that at which the partners resided, the fact that the business was carried on at the town where the lots are located by only one of the part- ners, was not a breach of the contract. Albany Land Co. v. Bickel, 162 Ind. 222, 70 N. E. 158. See also Sec. 630. Where an owner who had granted to a real estate broker the exclusive agency for the sale of land for a specified period sold the timber, which was the most valuable part of the land and thereby practically prevented the sale of the land according to the terms of the contract, the broker could, without waiting for the expiration of the contract, sue for the breach. Hunter v. Wewtcnee Land Co., 97 P. 494, 50 Wash. 438. A broker, in an action for commissions, could not recover for damages for breach of his contract of employment without plead- PLEADINGS, PRACTICE, ETC. 525 ing such breach. Knudson & Richardson v. Laurent, 140 N. W. 392, 159 Iowa, 189. Sec. 564. Correspondence. Where a firm of real estate agents sends a letter to a land owner enclosing their business card and informing him what the busi- ness of the firm is, and also inquiring whether the land is in the market and its price, and the owner immediately answers, giving the price of the land, the terms and conditions of sale, 'and the amount of commissions which he is willing to allow to the real estate agents for selling it, and they immediately commence to act as the agents of the land owner in trying to procure a pur- chaser of the land, they are his agents, iand when they find a purchaser ready to purchase the land upon the terms and condi- tions prescribed, and sell the land to him, they have earned their commissions. Stephens v. Scott, 43 Kan. 285, 23 P. 555 ; Imper- ato v. Wasboe, 93 N. Y. S. 489; Rodman v. Manning (Or. Sup. '09 ) 99 P. 657, 1135; Ispherding v. Wolf, 36 Ind. App. 250, 75 N. E. 598; Getzilsohn v. Donnett, 98 N. Y. S. 213, 56 Misc. 164; Montgomery v. Amster (Tex. C. A. '09), 122 S. W. 307; Pattratz v. Piper, 145 N. W. 265, 95 Neb. 145; Shaff v. Ash, 145 N. W. 271, 95 Neb. 255; a person dealing with a real estate agent, with knowledge that the agent's authority rests on correspondence be- tween him and his principal, must ascertain the extent of the agent's authority, and is bound by the restrictions thereof. Strong v. Ross, 33 Ind. App. 586, 71 N. E. 918. Real estate brokers wrote the owner of a lot that they had a customer therefor at a price named, and asked for an answer, and in reply to the owner's answer asked his lowest price and stated that they had a client for the lot; the owner answered naming his price, to which the brokers replied that their client deemed the price too high, but subsequently wrote that they were working to get him up to the owner's price, on condition that a second mortgage be paid off, and asked the owner to come to the city; the owner did not answer the letter nor come to the city, but the brokers again wrote that their client would pay the owner's price over existing mortgages, to which the owner answered accepting, providing that they did business at 526 AMERICAN LAW REAL ESTATE AGENCY. once, whereupon the brokers telegraphed or wrote the owner to come to their office on a day stated, but this the owner did not do. Held, not to constitute a contract of employment. Lotz v. Levy, 104 N. Y. S. 1058, 120 App. Div. 477. Correspondence between defendant and the owner respecting defendant 's author- ity and the nature of his dealings with the owner was admissible, not as declarations of third persons against plaintiff, but as tending to show the authority given defendant by the owner, and what he did thereunder. Wefel v. Stillman (151 Ala. 249), 44 S. 203. On the issue as to whether a loan broker was the agent of the defendant in negotiating a loan for him, or the agent of plaintiff company which made the loan, correspondence between the broker and the plaintiff's manager, relative to defendant's loan and the requested extensions thereof, and concerning other loans made by plaintiff through the broker, is admissible in evi- dence, and the question is for the jury. Jesson v. Texas Land & Loan Co. 3 Tex. Civ. App. 25, 21 S. W. 624 ; Holliday v. Mc- Williams, 76 Neb. 324, 107 N. W., 578 ; Bradley v. Bower (Neb. Sup.. '04), 99 N. W. 490; Hardwick v. Marsh, 130 S. W. 524, 96 Ark. 23. Sec. 565. Advances. The fact that a broker employed to sell land advanced the price to the purchaser did not make him the purchaser's agent. Goodson v. Embleton, 106 Mo. App. 77, 80 S. W. 22; Lawson v. Thompson, 10 Utah, 462, 37 P. 732. A broker negotiated a sale of plaintiff's land to defendant, but had the deed made out to a third person, who afterwards conveyed to defendant ; a few weeks after the sale the defendant agreed to let the broker sell the land for him at an advance, the profits to be equally divided between them; plaintiff did not know at the time of the sale that defendant was the purchaser, and there was then no arrange- ment or understanding between defendant and the broker as to any resale of the property or division of the profits. Held, that there was nothing in the transaction in fraud of plaintiff. Glover v. Layton, 145 111. 92, 34 N. E. 53. Bee. 566. The borrower. A company which is to receive a commission from the borrower for procuring a loan, and which makes out all the papers without PLEADINGS, PRACTICE, ETC. 527 knowing from whom the loan is to be obtained, and before sub- mitting them to the lender, is the agent of the borrower in procuring the loan. Land Mtge. etc. Co. v. Preston, 119 Ala. 290, 24 S. 707; Hammill v. American, etc. Mtge. Co., 127 Ala. 90, 28 S. 558. A broker who negotiated a loan and received his commissions from the borrower, taking a note payable at his office to the lender, is not authorized to receive payments on such note. Englerd v. White, 92 Iowa, 97, 60 N. W. 224. See also Sees. 255 and 257. Sec. 567. Acceptances. Where one wrote across a draft "accepted" in the name of his principal, by himself as agent, but which acceptance, though authorized in fact, did not in law bind the principal, it was held that unless the agent used the name of his principal without authority in fact, he could not be held personally bound. Walker v. Bank of State of N. Y., 5 Seld. (N. Y.) 582 ; Duncan v. Niles, 32 111. 532. Where defendant wrote plaintiff offering to pay him ten per cent, commissions for sales of land made for defendant at a specified price to persons obtained by plaintiff that defendant had no agreement with, and plaintiff immediately began to search for purchasers whom he succeeded in procuring, his acts consti- tuted a sufficient acceptance of the offer. Brown v. Smith, 113 Mo. App. 59, 87 S. W. 556. The performance of work by real estate agents in pursuance of an employment to sell land, when at once brought home to the knowledge of their employer, is an acceptance of the contract of employment. Arnold v. Nat. Bk. of Waupaca, 126 Wis. 362, 105 N. W. 828, 3 L. R. A. N. S. 385. When a party submits to another, through the mail, a proposition of purchase or sale, the receiver of the proposition has the right, within a reasonable time and before it is withdrawn, to accept by a writing deposited in the postoffice, duly stamped, ready for carriage and delivery, and such an acceptance binds the proposer of the contract from the time the deposit is made in the postoffice, whether it be delivered or not. Scottish American 528 AMERICAN LAW BEAL ESTATE AGENCY. Mtge. Co. v. Davis, 96 Tex. 504, 74 S. W. 17, 18; Dotson v. Mil- likean, 27 App. D. C. 500, judg. aff., 28 Sup. Ct. 489, 209 U. S. 237, 52 L. Ed. 768. Where an owner of real estate asks a real estate broker "to get a deal," it is not necessary for the real es- tate broker to assent in words, if he procures a purchaser he makes a contract by performance. Lamb v. Prettyman, 33 Pa. Super. Ct. 190. Where defendant sent to plaintiff a power of at- torney for the sale by him as agent of defendant's real estate, if an acceptance was necessary it was accepted by a letter from plaintiff stating that he had a buyer for the place and that he would leave on a day named with him, for the purpose of looking through the property. Luckett Land & Em. Co. v. Brown, 118 La. 943, 43 S. 628. The mere approval of a contract by a broker, where it sub- stantially differs from that which he was employed to make, can not of itself be held to be an acceptance of performance of the broker's obligations. Rieger v. Bigger, 29 Mo. App. 421. In an action by the grantor of realty to set aside a sale, on the ground that the agent employed by her to procure a pur- chaser, in fact purchased the property, while she thought the sale was being made to another, it appeared that the agent had in- duced her to sign a contract of purchase with such other party, the agent agreeing to execute with the other a bond accompany- ing a mortgage which was to be given to the grantor; subse- quently a deed was given running to the agent; the bond was signed' by the agent and the other, and the mortgage, signed by the agent alone, was kept by him for the purpose of record; after the grantor learned that the deed ran to the agent she informed him, on the payment of the interest on the purchase money mortgage given by him, that she would put the money in bank until she got her property back, and stated that she was going to see a lawyer. Held, that the acceptance of the money did not constitute a ratification of the transaction. Clark v. Bird, 72 N. Y. S. 769, 66 App. Div. 284. See also Sees. 458, 618. PLEADINGS, PBACTICE, ETC. 529 A broker wrote the owner of certain property asking if he would give him a short time, say thirty days, in which to effect a sale at a stated price on the usual commission basis, to which the owner replied that the broker had made a mistake as to the price, which was $5,000, and then added that he was not anxious to sell, but might consider a cash offer. Held, not an acceptance of the broker's offer of his services so as to constitute a contract of employment, under the rule that to constitute a contract the acceptance must agree with and be in the same terms as the offer. Henry v. Barker , 118 P. 205, 61 Or. 276, judg. aff. on re., 122 P. 298, 61 Or. 276. Acceptance by the principal of the purchaser is conclusive that he is able, ready and willing to buy. Handley v. Shaffer, 59 S. 286, 177 Ala. 636 ; Bailey v. Padgett, 70 S. 637, 195 Ala. 203. Where defendant applied to plaintiff for loan "to or through" such broker, to be made within reasonable time, and both parties contemplated securing loan from Insurance Co. and plaintiff never attempted to make loan himself, defendant could repudiate application, if not accepted by Insurance Co. within reasonable time. Calvin Phillips <& Co. v. Newoc Co., 172 P. 355, Wash. Sup. . Where broker prepared a contract to sell land, which required that certain party was to pay his commission, the execution of such contract was a sufficient acceptance thereof by the broker. Eickmeier v. Geddes, 126 N. E. 850,' Ind. App. . Acceptance by the seller of a purchaser furnished by the broker dispenses with the necessity of the broker showing, in an action for commissions, that the purchaser was able, ready and willing to buy, since the acceptance is taken as a conclusive admission of that fact. De Briere v. Yeend Bros. Realty Co., 86 S. 528, Ala. Sup. . Sec. 568. Conformity. Where the owner, on being informed by the broker that he has sold the land refuses to convey, without objecting to all the terms of the sale, such conduct is some evidence that the sale conformed to the directions given to the broker. Smith v. Keller, 151 111. 518, 38 NT. E. 250. 530 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 569. Costs. Where plaintiff, when she sued to compel specific performance of a contract to convey land, made by defendant with her as- signor, knew who. owned the property at the time the defendant undertook to contract for its conveyance, and that the contract was worthless, she was unable to recover the costs incurred in litigation, in an action on defendant's warranty of authority as agent to sell. 'Rowland V. Hall, 106 TS. Y. S. 55, 121 App. Div. 459. Sec. 570. Conditions precedent to right to commissions. A proviso in a broker's contract that commission shall be payable out of the first cash payment is not a condition precedent to the broker's right to recover his commissions, and does not mean that unless there is a cash payment there are to be no commissions. Finch v. Guardian Trust Co., 92 Mo. App. 263. Hanna v. Espalla (148 Ala, 313), 42 S. 443. See also Sec. 501. The principal agreed to pay the broker's commissions for sell- ing land when the vendees paid a certain sum and gave their notes and mortgage for the balance. The vendees executed their note, but never paid the money. The broker was not entitled to commissions. McPhail v. Buett, 87 Cal. 115, 25 P. 266 ; Ormsby v. Graham, 123 Iowa. 202, 98 N. W. 724. Where a contract of employment makes the right to a com- mission dependent upon the payment of the purchase price, the broker can not recover until the transaction is finally consum- mated. Cremer v. Miller, 56 Minn. 52, 57 N. W. 318 ; West v. Stoeckel, 6 Ohio Dec. (Rep.), 1082, 10 Am. L. Eec. 309; Cham- bers v. Armour, 83 S. 721, Fla. Sup. ; Hartman v. Selling, 189 P. 887, .Or. Sup. ; Murphy v. W. & W. Live Stock Co., 187 P. 857, Wyo. Sup. . Where, in an action by a broker for commissions for selling land, plaintiff relied on a written agreement by which payment of commissions was to be made, "one-half when the second pay- ment of building loan is due and payable, and the balance imme- diately after inclosure payment is due and made," these two events were conditions precedent to plaintiff's right to recover, and should have been pleaded and proved on the trial. Turner v. Lane, 93 N. Y. S. 1083, 47 Misc. 387 ; Jaupal v. Gold, 106 N. Y. S. 891, 122 App. Div. 401. PLEADINGS, PBACTICE, ETC. 531 Where a broker agrees to sell land upon condition that the owner shall first make $500 out of the sale, the broker to have the rest as his commission, he is not entitled to a commission for merely finding a purchaser upon the sale to such purchaser falling through on account of a defect in the title. Seattle Land Co. v. Day, 2 Wash. 451, 27 P. 74; Hess v. Eggers, 78 N. Y. S. 1119, 38 Misc. 726, affirming 76 N. Y. S. 980, 37 Misc. 845. Contra, Putzel v. Wilson, 2 N. Y. S. 47, 49 Hun, 220. A stipulation, that the principal is to pay the broker a cer- tain commission for negotiating a loan, when made, and the loan fails by reason of a defective title, does not make the right to a commission dependent on the making of the loan. Fitz- patrick v. Gilson, 176 Mass. 477, 57 N. B. 1000. See also Sec. 501. Where a broker's contract for commission provided that the amount sued for was payable out of the last cash payment, such payment constituted a condition precedent to any liability on defendant's part to pay such sum to plaintiff, and hence an allegation in plaintiff's complaint that the sum sued for "be- came due" on a given date, was not a sufficient allegation that the condition precedent had happened. Nekarda v. Presberger, 107 N. Y. S. 897, 123 App. Div. 418. If the right to a commission is dependent on payment of the price by the purchaser, the broker must show either pay- ment or a tender thereof. Burnett v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775 ; Fisk v. Soule, 87 Cal. 313, 25 P. 430. Under a contract providing for the payment of commissions "at the time of the payment by said purchaser," the broker was entitled to a commission on a partial payment, payment of commissions not being dependent on the payment of the entire purchase price, though the principal, a part owner, re- ceived no part of the said payment. Frank v. Bonnevie, 20 Colo. App. 164, 77 P. 363. See also Sees. 297, 470. Where land is sold for a price payable in installments, and the commission is to be paid as each installment is received, if the purchaser defaults after making certain payments, and the land is sold at judicial sale, and bought in by the prin- cipal in full satisfaction of the price, the broker is entitled to full commissions. Crane v. Eddy, 191 111. 645, 61 N. E. 431, 85 Am. St. K. 284. 532 AMERICAN LAW EEAL ESTATE AGENCY. Where the parties were familiar with the facts, and defend- ants were notified that plaintiffs would claim their commis- sions, a demand before suit was unnecessary. Clifford v. Meyer, 6 Ind. App. 633, 34 N. E. 23. In some contracts the delivery of the deed is made a condition precedent to the broker's being entitled to his commissions. Beebe v. Roberts, 3 E. D. Smith (N. Y.), 194. See also Sec. 536. Where an authorized agent agreed to sell land, subject to the approval of the owners, the approval of the owners was necessary to constitute a contract enforceable by either party, as the purchaser was not bound to accept the conveyance of an interest of only one owner. Jacobson v. Hendricks (Conn. Sup. '10), 75 A. 85. A broker having agreed to put through a change of defend- ant's location in consideration of a bonus, he was required to carry the transaction to a successful termination, as a condition precedent to the right to commissions, and the same having been abandoned because of defendant's inability to comply with the terms required, the broker could not recover. Holton v. Job Iron & Steel Co., 204 F. 947, 123 C. C. A. 269. A broker employed to procure a purchaser on specified terms, who produces a purchaser who enters into a tentative agreement with the owner as to the terms of sale, but who does not per- form a condition precedent to the taking effect of the contract, is not entitled to his commission. Nayl v. Small, 138 N. W. 849, 159 Iowa, 387. Under a contract of exclusive agency to sell a parcel of a large tract of land at a stated commission per acre, and providing for withholding parts of the commission until payments of deferred instalments of the price of parcels sold on time, the commissions were payable out of the proceeds of sale, and were not uncondi- tional obligations. Mdllon v. Interstate Inv. Co., 114 P. 167, 62 Wash. 187. Where a contract between owners of land, giving the agent the right for a specified period to subdivide land into lots and sell the same, accounting to the owners for a specified amount per foot, and taking the excess for his services, was subsequently modified by a provision that the owners should cause a plat of the subdivision to be approved by parties named, so that it could PLEADINGS, PBACTICE, ETC. 533 be recorded when the dedication of a certain street had been ef- fected, whereupon the selling agent should furnish security for the faithful performance of the contract as modified. Held, that the causing by the owners of the plat to be approved by the par- ties named was a condition precedent to the furnishing of the security by the selling agent, and until that was done he was not in default. Eandle v. Washington Loan & Trust Co., 45 App. D. C. 505. Where real estate broker is entitled to a certain sum in addition to his stipulated commissions only in case the contract of sale is consummated and the entire purchase price paid, or in the event that a certain sum as earnest money is retained as liquidated damages, under the terms of such contract of sale, and neither of such events happens, he is entitled to recover only such stipu- lated commission. Strassheim v. Reuttinger, 198 111. App. 258. Under a contract between real estate brokers whereby defend- ants agreed to pay plaintiffs a part of a commission in making a second mortgage loan, and providing that the amount specified should be paid plaintiffs when the money on the mortgage was paid; held, that the right of the plaintiffs was dependent on the making of the loan, as a condition precedent, and that they could not recover under such contract without first showing that the loan was in fact made. Stein v. Emerman, 203 111. App. 316. Where a rent agent enters into a contract of lease with a ten- ant, it is not competent to engraft on terms of contract stipula- tions as to commission so as to bind owner, as such stipulations are foreign to the subject-matter of lease, and do not concern the parties thereto. Forrest & George Adair v. Smith, 98 S. E 224, 23 Ga. App. 290. Under a contract whereby defendant agreed to pay a broker in case a deal or trade was made between him and S. a specified sum, the broker "to accept securities for same that I receive from S.", the broker was only entitled to his commission, if at all, out of the securities received, unless defendant was at fault in failing to carry out the contract with S. Thompson v. Ryan, 176 N. W. 275, mod. opin. on re., 174 N. W. 15, Iowa Sup. . CHAPTER II. SECTION. 571. Courts. 572. Equity. 573. Exceptions. 574. Forgery. 575. Loan payable in gold. 576. Licenses. 577. Limitations and restrictions. 578. Broker acting as a mere middle- man. 578a. Broker masquerading as a mid- dleman who acquires interests adverse to owner forfeits com- missions and must account for ill-gotten gains. 579. Unless mistake be pleaded and proved each purchaser bound for the whole commission. 580. "Immediate notice" means in a reasonable time. 580a. The word "able" in statute held to mean "financially able." SECTION. 581. Principal may remain neutral as to broker's claim. 582. Proposition inconsistent with negative to prove. 583. Parol contract of agent binds unnamed principal. 583a. Contracts between brokers to share commissions exempted from being in writing. 584. Broker to share in profits for sales not a partnership. 584a. Brokers not meeting earlier de- mands not precluded from sharing profits when paying share of note when due. 585. To pay commission on with- drawing land strictly con- strued. 586. In trying to effect a sale of real estate party may extrava- gantly extol. Sec. 571. Courts. Contracts with brokers for the sale of real property are presumptively entered into in good faith, and it is the province of the courts, in administering the law as to such contracts, to carefully protect the interests of the parties according to the true spirit and meaning of the contracts. C order v. O'Neill, 176 Mo. 401, 75 S. W. 764. Where two parties make a parol contract, and they disagree about its terms, it is the duty of the court, in an action arising thereon, to explain to the jury, when requested, the legal effect of each party's recollection of the terms of the same. Stewart v. Fowler, 37 Kan. 677, 15 P. 918. Fulfillment of an owner's contract entered into by a landowner for the payment of commissions will not, where it was 534 PLEADINGS, PEACTICE, ETC. 535 not illegal, be interfered with by the courts. Michael v. White, 181 S. W. 130, 121 Ark. 315. Sec. 572. Equity. A court of equity will not enforce against the owner of land a contract of sale made by his agent under authority given six years before, where the land has greatly appreciated in value meantime, and the agent, without advising his principal of such fact, made the sale for a price grossly inadequate at the time, though within the terms of the original authority. Hall v. Gambrill, 92 Fed. 32, 34 C. C. A. 190; Proudfoot v. Wightman, 78 111. 553. Compare Sec. 762. A broker procured to be made to himself a deed of land which he was employed to sell, the grantor intending it only as a means of carrying into effect a supposed sale to a third party, but the grantee described intended to obtain the land to his own use, and also fraudulently misrepresented the value of the consideration, which consisted of certificates of stock in mining companies. Held, that the deed was not void, but only voidable, on either ground, and that if the grantor, who soon learned the facts entitling him to a reconveyance, neg- lected for more than two years to do any act to avoid it, and exchanged the stocks for other stocks, he must be taken to have ratified the conveyance, and could not maintain a writ of entry to recover the land. Bassett v. Brown, 105 Mass. 551. Compare Sec. 321. An agent sold land of his principal and took a note for the purchase money in the name of himself and his principal, and assigned it to C., who sued thereon in the names of the payees for his use and recovered judgment. Held, that the assign- ment by the agent passed no interest of his principal, and that equity would relieve against the judgment. Wright v. Ray, 3 Humphrey (Tenn.), 68. Where defendant obtained authority from plaintiff to sell timber for the latter, and procured purchasers at the price named by plaintiff, but represented to plaintiff that he made the sale at a much less price, and could not get the price named by plaintiff, and thus induced plaintiff to convey the timber to the purchasers at the less price and appropriated the bal- 536 AMERICAN LAW REAL ESTATE AGENCY. ance paid for the timber by the purchasers to himself, under a secret agreement with them, the transaction was a fraud on plaintiff, and he was entitled to equitable relief. Lee v. Pattillo, 105 Va. 10, 52 S. E. 696. In an action for the breach of a contract to pay a broker a specific amount for procuring a loan on defendant's prop- erty, where defendant's refusal to accept the loan was shown, defendant may prove that the broker had agreed to pay the lender a bonus of a specified per cent, of his commission, to show the amount the broker was entitled to recover, on the equitable principle that the recovery must be confined to the actual loss. Finch v. Pierce, 103 N. Y. S. 765, 53 Misc. 554; Gatling v. Central Spar Verein, 73 N. Y. S. 765, 55 Misc. 554; McGovern v. Bennett, 146 Mich. 558, 109 N. W. 1055, 13 D. L. N. 853 ; Duncan v. Borden, 13 Colo. App. 481, 59 P. 60. See also Sees. 1070, 1078. Defendant, a real estate agent, submitted to his non-resident principal an offer for certain real estate, made by a person in his employ, without stating this fact, at a time when values were rapidly appreciating, which offer was accepted by plain- tiff. The alleged purchaser, finding himself unable to raise the money, conveyed to defendant, who assumed the former's lia- bility. Held, that the conveyance would not be cancelled in the absence of proof that defendant intended to purchase his principal's property in the name of another. Bookwalter v. Lansing, 23 Neb. 291, 36 N. W. 549. Where agents of the owner of land in contracting to sell it exceeded their authority by extending the time within which the purchaser could make a cash payment, and by receiving a sum to be held for the principal as a forfeit or payment on the purchase price, the purchaser was not entitled to specific performance of the contract. Shirley v. Coffin (Tex. Civ. App. '09), 121 S. W. 181. Defendant M., representing that he owned or controlled cer- tain mining claims, employed plaintiff to procure capital to purchase and operate them, whereupon complainant procured defendant L. to advance money, under a contract between M. and L. for the conveyance of the claims to a corporation which they formed, it being agreed that a portion of the stock should PLEADINGS, PKACTICE, ETC. 537 be issued to M. in consideration of a transfer of the claims to the corporation, and that a portion of M.'s stock so issued should be transferred to L., in payment for the money which he advanced, both M. and L. agreeing that the plaintiff should receive $50,000 of such stock for his commissions. M. in fact never purchased or conveyed any claims to the corporation with money furnished by L., but squandered such money, and no stock was issued to him therefor. Held, that, while com- plainant, under such facts, had a cause of action at law for his services against M. & L.. he could not maintain a bill in equity against the corporation, or either M. or L. to compel a trans- fer of $50,000 of the corporation's stock to him. Also held, that specific performance of M.'s agreement to convey the min- ing claims to the corporation could not be decreed, as it did not appear that M. had title thereto, but the contrary; and that neither Martin, nor Ryan, nor Lewis had equitable title to the stock, which belonged to the company. Ryan v. Martin, 165 F. 765. A vendor of land who has been compelled by a decree avoid- ing the sale to repay the commissions paid directly to the agent by the purchaser as a part of the consideration, being entitled to recover them from the agent in assumpsit, is not entitled to relief in equity by subrogation to the rights which the purchaser had, but did not urge against the agent. Volker v. Fisk (N. J. Eq. '09), 72 A. 1011. A cause of action for commissions by a broker who procures a purchaser, making a contract with the owner stipulating for a forfeiture as liquidated damages of the partial payment in the event of the purchaser's failure to complete the contract, arises when the sale is consummated or the contract may be specifically enforced. Ramsey v. West Texas Bank & Trust Co., 155 S. W. 551, Tex. Civ. App. . Where plaintiff's brokers fraudulently secured title to certain real estate belonging to plaintiff and incumbered it, plaintiff was entitled to have the incumbrance cancelled and the title restored. Monyhan v. Wolff, 143 P. 824, 26 Colo. App. 289. Where an agent, without the knowledge of his principal, acted for the other party to a contract for an exchange of land, and the principal brought an action to rescind the contract, and was 538 AMERICAN LAW EEAL ESTATE AGENCY. denied rescission because she was unable to put defendant in statu quo, and the court found that she was entitled to receive from defendant a sum of money which defendant had agreed to pay on a mortgage on the land conveyed to him, but had wrongfully refused to pay the same, judgment for such sum would be ren- dered as alternative relief, not only against defendant, but against the agent, who was also a party to the action. Neuman v. Fried- man, 136 S. W. 251, 156 Mo. App. 142. A purchase of land by an agent for its sale, who, without knowledge of his principal, buys property that he was to sell; held, voidable at the instance of the grantor. Payne v. Beard, 247 F. 247, 159 C. C. A. 341, cer. den., Beard v. Payne, 38 S. Ct. 335, 246 U. S. 666, 62 L. Ed. 929. Where contract of sale provided that broker should have the right to demand the delivery of a deed, the broker can not insist that it was the duty of the owner to enforce specific performance. Alison v. Chapman, 173 P. 389, Cal. App. . An agent of an owner to find a purchaser on the owner's terms, by a sale of land on such terms could not compel its conveyance. Schuhmacher v. Lebeck, 173 P. 1072, Kan. Sup. . Attempt by agent authorized to find a purchaser for land on certain terms to purchase the land for himself, without disclosing himself as purchaser, was within the rule forbidding a selling agent to buy for himself, that he was to receive as compensation whatever the land brought over a fixed sum. Id. A contract for the sale of realty negotiated by a broker who represents not only the seller but also the purchaser, without the seller's knowledge, is voidable at the seller's option. McCulley v. Rivers, 170 1ST. W. 24, 200 Mich. 417. In a suit by a property owner for the cancellation of notes which he executed and delivered to defendants as compensation for the negotiation of a loan, which was intended to enable him to construct a permanent building on his property; held, that the notes should be cancelled, as without consideration, the loan not having been consummated because of conditions insisted upon by the lender procured by the brokers. Newman v. Adelsperger, 173 N". W. 351, Mich. Sup. . If the broker was the agent of the buyers of land and collected full price from them and failed to pay it to the seller, as between PLEADINGS, PRACTICE, ETC. 539 the seller and buyers the transaction will be treated as if the buyers had not paid any part of the price, and decree of cancel- lation of the seller's deed to them will result. Wynn v. Hoffman, 82 S. 32, Ala. Sup. . Equity has jurisdiction of a suit by a corporation against a real estate agent who was engaged to purchase a factory site for the corporation; and, notwithstanding the fiduciary relations, made a certain profit, the jurisdiction of equity not being denied by reason of a right of action at law and on quasi contract. H. J. Jaeger Co. v. Hannan, 108 A. 1, N. J. Eq. . Where owner of land, upon selling it, gave to broker who bad assisted in procuring the purchaser the owner's note, which was to be surrendered by the broker to the owner, if notes represent- ing three instalments of the purchase price of the land were not paid, and later the land sale was cancelled and the land recon- veyed to the owner, but the owner's note to the broker was transferred by the latter to an innocent purchaser before matur- ity which recovered thereon, the owner was entitled to recover over against the broker. Gillean v. First State Bank of Barry, 219 S. W. 896, Tex. Civ. App. . If a real estate agent having property of another to sell became personally interested in the sale, without knowledge of the owner, equity will not aid him (broker) in enforcing his interest so ac- quired in the property sold. Chester v. Campbell, 109 A. 901, N. J. Ct. of Err. and App. . In view of the relations between parties the real estate broker with whom property is listed for sale can not purchase it for himself, or become interested in the purchase, unless his interest is disclosed to the principal, and even when disclosed his actions must be characterized by the utmost good faith thereafter, and broker who undertook to find a purchaser for property belonging to an aged woman can not, where he did not disclose to her his interest, have specifically enforced for his own benefit as pur- chaser a contract for sale which she signed, but which obligated no one to purchase. Besser v. Allen, 111 A. 885, E. I. Sup. . * In an action for specific performance of contract for sale of land, it must be shown that the agent's authority was identical with the terms of contract sued on, and if terms of contract vary 540 AMERICAN LAW REAL ESTATE AGENCY. from express authority, where express authority rests in parol, proof of parol authority must be clear and convincing, and also show authority to include all material terms embodied in con- tract. Spengler v. Sonneriberg, 88 0. S. 192. Sec. 573. Exceptions. Where an agent in making a sale of real estate has acted as agent for the vendor as well as the vendee, he can not recover commissions from the vendee, unless he brings the case within one of the established exceptions to the general rule that an agent can not recover commissions from both parties to the transaction. Bunn v. Kerch, 214 111. 259, 73 N. E. 419. Sec. 574. Forgery. The treasurer of a charitable corporation, without authority, took railroad bonds registered in the name of the corpora- tion, to a broker for sale ; the broker refused to handle the bonds unless they were made transferable to bearer by the legal transfer agent of the railroad; the transfer agent re- quired from the corporation a copy of a resolution of its di- rectors authorizing the transfer and a power of attorney to make it; the treasurer drew up a resolution of authority and forged thereto the signatures of the officers and the seal of the corporation, and also forged a power of attorney; the transfer agent thereupon, in good faith, made the transfer, and the broker sold the bonds. Held, that the broker and the railroad company were liable to the corporation for the value of the bonds, though both acted in good faith, and the corporation may recover from either. Jennie Clarkson Home for Children v. R. R. Co., 87 N. Y. S. 348, 1137, 1138, 92 A. D. 491, 618, 617, 182 K Y. 47, 507, 74 K E. 571, 1118, 70 L. E. A. 787. Compare Sees. 351, 280. Ordinarily, however, brokers are not personally liable for loss on a forged note sold by them, where they advised the vendee at the sale that they were acting as agents and disclosed their prin- cipal. Bailey v. Galbreath, 100 Teun. 599, 47 S. W. 84? A real estate agent enlisting a large tract of land for an owner to be sold in subdivisions, who told a purchaser, with knowledge of the agency, but not that prices had been fixed, that the price PLEADINGS, PRACTICE, ETC. 541 of the particular tract was $500, $250 down and $250 in six months, was acting within the scope of his apparent authority when he delivered a forged contract for deed, and a forged deed, when the purchaser made the two payments, though the agent was not authorized to sell the particular tract for less than $600. Bagley v. Paris, 179 P. 795, Wash. Sup. . Sec. 575. Loan payable in gold. Where plaintiffs were employed by defendants to procure for them a loan on a mortgage on land, and the loan was not made solely because the lender found insisted on a clause in the mortgage that the principal and interest should be paid in gold; the plaintiffs did not perform the contract and are not entitled to compensation, since the contract meant a loan to be paid in lawful money, and the mortgage loan could not be paid in but one kind of money. Caston v. Quimby, 178 Mass. 153, 59 N. E. 653. See also Sec. 546. Sec. 576. Licenses. In the absence of evidence to the contrary, that the plain- tiff was licensed to act as a broker will always be presumed. Munson v. Fenno, 87 111. App. 655; Shapler v. Scott, 85 Pa. St. 329. It is the rule in most jurisdictions that a broker who fails to procure a license to carry on his business, as required by law, is barred recovery of commissions for acting as broker. Whitfield v. Hiding, 50 111. App. 179 ; Eckert v. Collot, 46 111. App. 361; Beeder v. Jones (Del. Super. '02), 65 A. 571; Rich- ardson v. Brix, 94 Iowa, 626, 63 N. W. 325 ; Tount v. Denning, 52 Kan. 629, 35 P. 207; Buckley v. Humason, 50 Minn. 195, 52 N. W. 385 ; Wicks v. Carlisle, 12 Okla. 337, 72 P. 377 ; John- son v. Hulings, 103 Pa. St. 498; Coles v. Meade, 5 Pa. Super. Ct. 334; Costello v. Goldbeck, 9 Phila. (Pa.) 158; Stevenson v. Ewing, 87 Term. 46, 9 S. W. 230 ; Saule v. Ryan (Tenn. Ch. App. '99 ), 53 S. W. 977; Pile v. Carpenter, 118 Tenn. 288, 99 S. W. 360; Weinshenker v. Epstein, 176 111. App. 104; Friedland v. Isenstein, 101 111. App. 109; Fuerst v. Stone, 102 111. App. 256. In some of the States the courts allow the recovery of com- 542 AMEBICAN LAW EEAL ESTATE AGENCY. missions by an unlicensed broker, upon the ground that the license laws are enacted purely as revenue measures, and have no effect on the rights of the parties inter se. Houston v. Bo- agni, McGloin (La.), 164; Walker v. Baldwin, 103 Md. 352, 63 A. 362; TooTcer v. Duckworth, 107 Mo. App. 231, 80 S. W. 963; Prince v. Eighth St. Baptist Ch., 20 Mo. App. 332; Euck- man v. Berghold, 37 N. J. L. 437; Amato v. Dreyfus (Tex. Civ. App. '96), 34 S. W. 450; Watkins Ld. Mtge. Co. v. Thetford (Tex. Civ. App. '06), 96 S. W. 72; Ober v. Stephens, 54 W. Va. 354, 46 S. E. 195 ; Stiewel v. Lally, 89 Ark. 195, 115 S. W. 1134; Smith v. Sharp, 50 S. 381, 162 Ala. 433, 136 Am. St. Eep. 52; Alford v. Creigh, 62 S. 254, 7 Ala. App. 358; Hodges v. Bayley, 143 S. W. 92, 102 Ark. 200; Harrison v. Kersey, 64 S. 353, 67 Fla. 24; Baskett v. Jones, 225 S. W. 158, Ky. Ct. App. . The fact that a real estate agent had a license at the time of the action to recover commissions does not raise a presump- tion that he had a license two years before, at the time of the transaction. Eckret v. Collot, 46 111. App. 361. One who, while engaged in other business, sells land for an- other, may recover his commissions, though he had not taken out a license as required of real estate agents, since a single sale does not constitute the exercise of the business of real estate brokerage. O'Neill v. Sinclair, 153 111. 525, 39 K E. 124; Roeder v. Butler, 19 Pa. Sup. Ct. 604; Jackson v. Hough, 38 W. Va. 236, 18 S. E. 575; Pope v. Beale, 108 Mass. 561 ; Packer v. Sheppard, 127 111. Ap. 598. Infra, Springsteen v. Lewis, 259 F. 518. The fact that the agent had taken out no license as a real estate agent under the internal revenue law of the United States will not affect his right to recover compensation; the sole object of that law in requiring real estate agents to take out licenses was to raise revenue; the question in such case is, whether the statute was intended as a protective measure or merely as a fiscal expedient; whether the Legislature intended to prohibit the act unless done by a qualified person, or merely, that the person who did it should pay a license fee ; if the lat- ter, the act is not illegal. RucJcman v. Bergholz, 37 N. J. L. 437. A trust company incorporated in Pennsylvania, under an PLEADINGS, PEACTICE, ETC. 543 act of the Legislature, and authorized to buy and sell real es- tate, is not liable as a real estate broker for the license tax imposed on any individual or corporation. Commonwealth v. Real Estate Trust Co., 211 Pa. St. 51, 60 A. 551 ; Manke v. Tingh, 98 P. 792 (Kan. Sup. '08). An auction sale of real property does not make the one ne- gotiating such sale a broker within the meaning of the license act. Tedinsky v. Strouse, 6 Pa. Super. Ct. 587, 42 Week. Not. Cas. 12. A receipt for license from the State Treasurer is not such a license as authorizes a real estate broker to act so as to relieve himself from penalties, and to enable him to recover commissions. Jadivin v. Hurley, 10 Pa. Super. Ct. 104. Unless it clearly appears that the Legislature intended more, it will be held that the penalty imposed by the act on a real estate agent selling property on commission, without a license, excludes all others. 0~ber v. Stephens, 54 W. Va. 354, 46 S. E. 195; Coll v. Dunlevie, 63 W. Va. 398, 60 S. E. 384. A person who sells property for another under a special contract, without holding himself out to be a real estate broker, may re- cover though he has not complied with the act requiring real estate brokers to take out a license. Black v. Snook, 204 Pa. St. 119, 53 A. 648 ; Yedinsky v. Strouse, 6 Pa. Super. Ct. 587, 42 W. Not. Cas. 12. Supra. Also Sec. 604. Where a resident of New Jersey contracts with a real estate broker in Pennsylvania to sell real estate situate in New Jersey, he is not required to have a real estate broker's license under the Pennsylvania statute, to make his contract valid. Callaway v. Prettyman, 218 Pa. St. 293, 67 A. 418; Cervenka v. Hunter, 185 111. App. 547. In an action to recover commissions on a sale or exchange of real estate, where the plaintiff describes him- self in his statement of claim as a dealer in real and personal property, and in the regular course of business made the sale or exchange in question, and it is admitted that plaintiff had not taken out a license, as required by law, the statement of claim is admissible as evidence tending to show that the plaintiff is a real estate broker, and when the statement is supported by the evi- dence of two witnesses called by the defendant, it is error for the court to give binding instructions for plaintiff. Sprague v. Reilly, 34 Pa. Super. Ct. 332. 544 AMEEICAN LAW EEAL ESTATE AGENCY. If a broker was duly licensed at the time he completed the negotiations for a sale of real estate, by which the purchaser leased the same with an option to purchase, the fact that the broker was not licensed at the time the purchaser elected to exercise such option was no defense to the broker's claim for commissions. Coates v. Locust Point Co., 102 Md. 291, 62 A. 625. If it does not appear from the evidence that plaintiff was licensed to engage in or carry on the business of a real estate broker in the State where the contract is alleged to have been made, the defendant would not be entitled for this reason to a verdict, if there is nothing in the evidence to show that a real estate broker is required, under the law of that State, to have a license in order to carry on the business, and there is no averment in the pleadings that the plaintiff was acting as a licensed real estate broker in the transaction of the business in question. Richards v. Eichman, 5 Penne. (Del.) 558, 64 A. 238. While an unlicensed broker can not recover commissions for his services, he may recover for advances made in negotiating con- tracts for a customer, when such contracts are not prohibited or against public policy. Cutler v. Partridge, 182 111. App. 350. A license issued to a real estate broker in a trade name under which the broker did business; held, not to defeat his right to commissions, it appearing that he paid for the license for no one but himself or business under it, and that issuance in his indi- vidual name was therefore refused. Octinger v. Levit, 186 111. App. 104. An ordinance requiring a license by an employee of a broker, where he shall engage himself in the business or acting in the capacity of a broker; held, not to apply to mere employees of brokers, though they are paid a certain portion of the commis- sions. Thorpe v. Weber, 191 111. App. 2. Where a broker's license is issued to a partnership, and one of the partners succeeds to the business of the partnership upon dis- solution of the firm and continues business individually, at the same location, he is to be considered a licensed broker. Fried- land v. Isenstein, 191 111. App. 109. PLEADINGS, PEACTICE, ETC. 545 An ordinance requiring licensing of brokers applies only to persons engaged in the business of brokerage as an occupation or vocation. Ross v. New South Farm & Home Co., 191 111. App. 353. Under Pub. Laws 1913, chap. 201, sec. 32, in relation to li- censes for business of buying and selling real estate, an employee is not subject to tax, but is protected by license of his principal. Western Carolina Realty Co. v. Rumbough, 90 S. E. 931, 172 K C. 741. A city ordinance licensing real estate brokers does not apply to one engaged in other business who attempted as agent to dis- pose of oil leases held by another. Engles v. Blacker, 192 S. W. 193, 127 Ark. 385. Where the plaintiff, an unlicensed real estate broker, on behalf of the defendant, initiated and was the procuring cause of an ex- change of defendant's property for other property, which was ef- fected after plaintiff had become a member of a firm which was duly licensed to conduct a real estate brokerage business; held, that the evidence supported a finding and judgment for the plain- tiff in the action to recover commissions for effecting such ex- change. Cronstedt v. McCormick, 203 111. App. 319. It is not necessary under the ordinance of the City of Chicago that the hired clerk of a regularly licensed real estate broker, who represents his employer in securing a lease of property for the latter should be a licensed agent. Kappes v. Bacon, 209 111. App. 290. That plaintiff, in an action against a real estate broker to re- cover on a promise to pay one-half of the commission received by defendant from customers secured by plaintiff, is not the holder of a broker's license, does not preclude him from recover- ing. Gross v. Strauss, 208 111. App. 263. Stat. 1919, p. 1252, providing for a licensing of brokers and real estate salesmen, and requiring persons desiring to engage in such business to furnish evidence of good moral character, etc., is valid, in view of the peculiar nature of the employment. Rileij v. Chambers, 185 P. 855, Cal. Sup. . Where one non-resident of a city engaged the services of an- other non-resident to sell his farm on commission, he can not avoid paying commission because the broker had not a license 546 AMERICAN LAW REAL ESTATE AGENCY. required by an ordinance of the city, though both the written contract to pay the broker and the contract of sale were executed within the city. Peters v. Andrews, 129 N. E. 328. Ind. App. . Sec. 577. Limitations and restrictions. Where the contract of employment limits the same to the sale of certain property, it must be made to appear that the property sold was within the description. Maze v. Gordon, 96 Cal. 61, 30 P. 962. Where a broker is, by agreement, to receive commissions for procuring a purchaser for land only on condition that a sale is made to a certain person, he can not recover if a sale to such purchaser is not consummated, owing to the fault of either of the parties. Lyle v. Uni. Land, etc., Co. (Tex. Civ. App. '95), 30 S. W. 723. Compare Sees. 526 and 527. A qualification of a broker's right to commis- sions for a sale of property, that, "if sold to a party sent by Mr. Rapp all this week, then no commission is to be paid; also, A. Ozias," limits the time within which a sale to such persons might be made without payment of commissions, to ' ' this week. ' * Gaty v. Clark, 28 Mo. App. 332 ; Smith v. Tate, 82 Va. 657. Sec. 578. Broker acting as a mere middleman. If the broker acts as a mere middleman, and finds a pur- chaser at the price fixed, it is immaterial that each party to the transaction was ignorant of the broker's employment by the other party. Montross v. Eddy, 94 Mich. 100, 53 N. W. 916. [A. broker whose undertaking is merely to find a purchaser at a price fixed, or at a price satisfactory to the seller, is, in reality, only a middleman, whose duty is performed when the buyer and seller are brought together. Johnson v. Hay ward, 77 Neb. 35, 107 N. W. 384, 5 L. R. A. (N. S.), 112: Handleij v. Shaffer, 59 S. 286, 177 Ala. 636. Compare Earten v. Loeffler, 31 App. D. C. 362. See also Sec. 475. A middleman is employed to bring two or more persons to- gether, the parties, when they meet, to do their own negotiating and to make their own markets, and he sustains no confidential relations to either party. Arthur v. Ga. Cotton Co., 96 S. E. 232, Ga. App. . PLEADINGS, PRACTICE, ETC. 547 In an action to recover a commission, for services rendered as a middleman in bringing the parties together to make an exchange of property, evidence held to show that plaintiff was an active broker representing the party with whom defendant made the exchange, and was not a mere middleman who simply brought the parties together and permitted them to make their own trade, and was consequently not permitted to recover com- missions from defendant. Pinch v. Morford, 142 Mich. 63, 105 N. W. 22. Under a petition alleging defendant's employment of plaintiff as a broker, in effecting a sale of property for de- fendant, plaintiff can not recover on proof of services as a mere middleman. Southack v. Lane, 65 N. Y. S. 629, 32 Misc. 141. A broker who acts as a middleman to effect a purchase and sale of property, represents both the purchaser and the seller and is the common agent of both, Colvin v. Williams, 3 Harr. & J. (Md.) 38. 38; also to hold contract of sale. Sec. 557. To a certain extent and for certain purposes, by the un- derstanding and usages of business and the nature of his em- ployment, a broker is authorized to act for both parties. But what he does in that relation he does as an indifferent person and not in the interest of either party. Every one who employs him is presumed to know and consent that to that extent and for such purposes he may so act. But beyond that he has no right to engage in the interests of the other party, without the actual knowledge and consent of his principal. Even cus- tom or usage will not be allowed to extend the right to act for and receive commissions from both parties to matters where the interests of the parties are or may be diverse. Walker v. Osgood, 98 Mass. 348. Compare Sees. 475, 799b. See also Sec. 764. Sec. 578a. Broker masquerading as a middleman who ac- quires interests adverse to owner forfeits commissions, and must account for ill-gotten gains. Where an agent stands in the situation of a mere middleman, not having undertaken to act as agent for either party or to ex- ercise his skill, knowledge or influence, but merely to bring the parties together to deal for themselves, he may recover from 548 AMERICAN LAW EEAL ESTATE AGENCY. each, but to stand in the position of a middleman he must have limited his services to the bringing of the parties together, and where the broker, in disregard of his duty, conceals an adverse interest or secretly enters into the service of another, he not only forfeits his right to commissions, but must account for gains un- lawfully acquired, etc. Schmidt v. Wallinger, 99 S. E. 680, 125 Va. 361. Sec. 579. Unless mistake be pleaded and proved each pur- chaser bound for the whole commission. Where a title bond is executed to several joint purchasers, each is bound for the whole commission payable to one who has assisted them in making the purchase, unless a mistake in the writing is pleaded and proved. Schomberg v. Anxier, 101 Ky. 292, 19 Ky. L. R, 548, 40 S. W. 911; Clifford v. Meyer, 6 Ind. App. 633, 34 N. E. 23. Sec. 580. Notice immediate 1 " terminating agency means in a reasonable time. Where the contract was that if defendant by himself or through any of his agents sold the property, defendant was to give plaintiff immediate notice of that fact, the meaning, taken in connection with the admitted facts, was an actual sale and binding agreement on the finding of a purchaser by another agent than plaintiff, ready, willing and able to buy, of which fact defendant had notice, immediate notice required by the contract being notice within a reasonable time, taking into consideration the situation of the parties and all the sur- rounding circumstances. Tuffree v. Bienford, 130 Iowa, 532, 107 N. W. 425. Sec. 580a. The word "able" in statute held to mean "finan- cially able". The word "able" as used in Civil Code 1910, Sec. 3587, which provides that the broker's commissions are earned when, during the agency, he finds a purchaser ready, able and willing to buy, etc., means "financially able." Shaw v. Chiles, 71 S. E. 745, 9 Ga. App. 460. PLEADINGS, PRACTICE, ETC. 549 Sec. 581. Principal may remain neutral as to the claims of several brokers. Where several brokers are openly employed to sell real property, the entire duty of the seller is performed by remain- ing neutral between them and he has a right to make the sale to a buyer produced by any of them without being called upon to decide between these several brokers as to which of them was the procuring cause of the purchase. Vreeland v. Vatter- lein, 33 N. J. L. 247, criticizing Eggleston v. Austin, 27 Kan. 245; Scott v. Lloyd, 19 Colo. 401, 35 P. 733; Witherbee v. Walker, 42 Colo. 1, 93 P. 1118 ; Dreyer v. Ranch, 42 How. Pr. (N. Y.) 22, 3 Daly, 434; Martin v. Billings, 2 City Ct. R. (N. Y.) 86 ; Jennings v. T rummer, 96 P. 874, 52 Oregon, 149 ; Frinck v. Gilbert (Wash. Sup. '09), 101 P. 1088. Compare Sees. 291, 446. Where the owner lists property with several brokers for sale, he occupies a neutral position, being only int3rested in the re- sult, and can sell and pay the commission to the first broker who presents a customer who is ready and willing to purchase. Frink v. Gilbert (Wash. Sup. '09), 101 P. 1088. Sec. 582. A proposition is not proved until inconsistent with the negative. Upon an issue whether the owner of real estate during the continuance of an option given upon it, offered to sell it to another party at less than the option price, a statement made by such party to a witness that such an o^er had been made to him is not admissible evidence against the owner; it is mere hearsay; the fact that during the continuance of the option the owner bargains the property to a third party, but contin- gent upon the failure of the option holder to comply wich the terms of his option, does not alone constitute a breach of the option by the owner; upon the issue whether the owner dur- ing the continuance of the option dissuaded a possible customer of the option holder from purchasing from him, evidence that the owner and the customer had several interviews, and, after the termination of the option, entered into a .contract rela- tive to the land, does not alone prove dissuasion by the owner; the customer may nevertheless have first of his own notion, 550 AMERICAN LAW EEAL ESTATE AGENCY. abandoned the option holder, and then have sought to persuade the reluctant owner; the affirmative of such an issue is not sustained so long as the evidence merely justifies suspicions or surmises, or so long as the negative may, after all, be consistent with the evidential facts; a proposition is not proved until the evidence becomes inconsistent with the negative. Smith v. Lawrence, 98 Me. 92, 56 A. 455. Sec. 583. Parol contract entered into by agent in his own name binds unnamed principal. An agent can, by parol contract entered into in his own name, bind a principal whose name does not appear in the in- strument executed in pursuance thereof. So held, in an action by executors to recover rent upon a lease not under seal, the copy adduced being signed by the lessee only, and the plain- tiffs being described therein as landlords, with the word "agents'* after their names. Nicoll v. Bwrke, 45 N. Y. Super. Ct. 75. See Sec. 601. Sec. 583a. Contracts between brokers to share commissions for services exempted from being in writing. While Civil Code, Sec. 1624, requiring agreements employing brokers to buy or sell real estate for hire to be in writing, does not extend to agreements between brokers to co-operate in mak- ing sales for a share of the commission, and recovery may be had in such cases on proof of an oral agreement; this pre-supposes that a valid contract for commissions is extant, a division of which could be subject of subsequent oral agreement. Saunders v. Yoakum, 107 P. 1007, 12 Cal. App. 543 ; Hageman v. O'Brien, 141 P. 33, 24 Cal. App. 270; Hieddk v. Allen, 147 P. 474, 26 Cal. App. 509 ; MacTcroth v. Sinky, 148 P. 978, 27 Cal. App. 112 ; Oiks v. Wilmott, 52 S. 287, 59 Fla. 271; Egeland v. Schiller, 189 111. App. 426; Blake v. Hunkey, 128 P. 181, 88 Kan. 272; Collins v. Belford & Stump, 130 P. 662, 89 Kan. 92; White v. 'Robinson, 138 1ST. Y. Sup. 992, 153 App. Div. 776. PLEADINGS, PRACTICE, ETC. 551 Sec. 584. Contract of broker to share in profits for making sales of a partnership. Where a real estate agent has a written contract with the owner of land to put it upon the market, advertise and sell the same, having for his interest only a share in the surplus profits arising from the proceeds of the sale of the land, it is a contract of agency and not of partnership. Durkee v. Ounn, 41 Kan. 496, 21 P. 637; Hiclcs v. Post, 154 Cal. 22, 96 P. 878. Compare Seattle Land Co. v. Day, 2 Wash. 451, 27 P. 74. Sec. 584a. Brokers not meeting earlier demands not pre- cluded thereby from sharing in profits when paying share of note when due. Where real estate agents gave their note for the purchase price of land, and agreed to share the profits arising from its re- sale, the failure of some of the agents to meet their share of the note before it was due, as requested by the others, does not de- prive them of their share of the profits, where the land was re- sold before the note became due, so that there was no actual default. Etscheid v. Thiefanthaler, 177 N. ,W. 887, Wis. Sup. . Sec. 585. Contract to pay broker a commission on withdrawing land from sale strictly construed. A provision in a real estate broker's contract for commis- sions for a sale of land, that the owner might withdraw the land from the market or raise the price on paying to the bro- ker two per cent, of the price stipulated, is penal in character and must be strictly construed. Tracey v. Abney, 122 Iowa, 306, 98 N. W. 121. Compare Sees. 132, 552. Sec. 586. In trying to effect a sale of real estate party has the right to extravagantly extol. A party in trying to effect a sale has the legal right to puff the property in the most extravagant manner and exalt its value to the highest point his antagonist's credulity will bear. Tuck v. Downing, 76 111. 71. CHAPTER III. SECTION. 587. Quantum meruit. 588. Broker has right of action against defaulting purchaser for lost commissions. 588a. Broker's right to recover from vendee price paid for property purchased for him. 589. No right in equity arises out of a verbal contract for the sale of land. 590. Statute of frauds. 591. Real estate agent not liable for failure to remove snow from sidewalk. 592. Seals, and the necessity for their use. 593. When tender of written agree- ment by purchaser not nec- essary. 594. Employment of broker to meas- ure land does not sustain claim of broker for selling. 595. Where title taken by broker to hind purchased, principal may tender amount and demand deed. 596. When not necessary for broker to show vendor had a clear title. 596a. Broker entitled to commission under contract upon corporate employer acquiring title to land. 596b. Marketable title in fee simple necessary to give broker right to commissions, in absence of binding contract with pur- chaser. 552 SECTION. 597. Contract of sale requiring owner to furnish abstract of title not within authority of broker. 598. A custom of usage must be gen* eral before a court will declare its existence as a matter of law, 599. Where a usage is proved the law raises a presumption that the agent contracted with refer- ence thereto. 600. Unconstitutionally of statute re- quiring contract employing broker to be in writing. 601. Undisclosed principal. 601a. Postal card insufficient under statute to constitute contract for broker's commissions. 602. Where broker must be authorized in writing. 602a. Manner in which contracts with broker to sell land should be construed. 602b. Broker entitled to commission when owner and customer reach an agreement. 602c. Broker entitled to commission on sale on contract held a contract to sell and not of agency. 602d. Contract signed by one and later by all tenants in common held sufficient for broker's com- missions. 602e. Contract of employment must be in writing, whether broker or middleman. 603. Broker cannot recover commis- sions where contract unen- forceable. PLEADINGS, PRACTICE, ETC. 553 SECTION. 603a. Contract of employment to pur- chase land not required to be in writing. 604. Contract by unlicensed broker not absolutely void. 605. Agreement to hire auctioneer to sell land need not be in writing. 606. Memoranda held insufficient to meet the requirement of the statute of frauds. 607. Statute of limitations. 608. Rival brokers. 609. If purchaser willing to perform, statute of frauds not available to defeat broker's commissions. 610. Reasonable price inferred by law. 611. What is a reasonable time. 612. Broker's employment continues for reasonable time. 612a. Owner allowed reasonable time after purchaser procured to prepare abstract, deed, etc. 612b. Broker's contract of employ- ment required owner to desig- nate tracts and fix prices and terms within a reasonable time. 612c. Favorable reply of owner to broker's inquiry bound former for reasonable time for broker to find a purchaser. 6l2d. Broker's contract of employ- ment in March held not ended in August. 613. Contract to pay $1,000,000 for reasonable time. 614. When reasonable time imma- terial. 614a. When six months not unreason- 8ECTION. able delay in accepting broker's offer for rinding a purchaser. 615. In absence of express agreement, reasonable value of services recoverable. 616. Reasonable compensation. 617. Not necessary for broker to put defendant in default before suing for compensation. 618. Ratification not shown by ac- quiescence without knowledge. 618a. Reply of owner that did not constitute a ratification. 618b. When knowledge of broker with- held from purchaser did not bind latter. 619. Ratification by acceptance of offer to broker. 620. Ratification cures defect in agent's appointment. 620a. Sufficient allegation of ratifica- tion. 621. Ratification by principal execut- ing contract. 622. Ratification by acceptance of proceeds. 623. To constitute ratification of act of attorney, knowledge on part of principal immaterial. 624. It is an essential prerequisite to ratification that principal had knowledge of unauthorized contract. 624a. Sale by owner's son at reduced price to broker's customer barred broker's commission. 625. Tender not necessary to entitle broker to recover on principal refusing purchaser. Sec. 587. Quantum meruit. If plaintiff declares on an express contract, but fails to prove it, in most jurisdictions he is not entitled to recover on a quantum meruit. Emery v. Atlanta R. E. Ex., 88 Ga. 321, 14 S. E. 556; Hammers v. Merrick, 42 Kan. 32, 21 P. 783; McDonald v. Ort- 554 AMERICAN LAW EEAL ESTATE AGENCY. man, 98 Mich, 40, 56 N. W. 1055; Thuner v. Kanter, 102 Mich, 59, 60 N. W. 299; McDonnell v. Stevenson, 104 Mo. App. 191, 77 S. W. 766; Veatch v. Norman, 109 Mo. App. 387, 84 S. W. 350; Dorrington v. Powell, 52 Neb. 440, 72 N. W. 587; Ed- wards v. Goldsmith, 16 Pa. St. 43; Thornton v. Stevenson (Tex. Civ. App. >95), 21 S. W. 232; Oliver v. Morawitz, 95 Wis. 1, 69 N. W. 977; Green v. Mules, 30 L. J. C. PL (Eng.) 343. Compare Sec. 639. A real estate agent suing on a sale of land, relying on a spe- cial contract for a commission, can not recover upon quantum meruit. Bentley v. Edwards, 146 N. W. 347, 125 Minn. 179; 51 L. K. A. (N. S.) 254, Ann. Gas. 1915 C, 882; Bryant v. Ayres, 190 111. App. 499; Read v. Farquharson, 207 S. W. 335, Tex. Civ. App. . It has been held that on a petition to recover an alleged agreed compensation for services as broker, a recovery may be had on proof of the reasonable value of the services, and the variance may be disregarded unless it appears that defendant was misled. Susdorf v. Schmidt, 55 N. Y. 319; Close v. Brown, 230 111. 228, 82 N. E. 629 ; Gregg v. Loomis, 22 Neb. 174, 34 N. W. 355. "Where no agreement as to compensation was made between the owner of property and the broker employed by him to make a sale thereof, the broker, on procuring a purchaser, could recover on a quantum meruit for his services in making the sale at the price he did, though the principal had previously revoked the agency by selling the property without the broker's knowledge, and not merely compensation for his services up to the time of the revocation of the agency. Reams v. Wilson, 147 N. C. 304, 60 S. E. 1124. Compare Sec. 15. Under a contract to make one the sole agent to sell lots at a commission "which shall be in full for any services he may render in surveying and laying out the land," the agent can not, having made no sales, recover on a quantum meruit for the services. Gilbert v. Judson, 85 Cal. 105. Though a contract for a broker's services is required by the Code to be in writing, subscribed by the party to be charged, or his agent, in order to be valid, such fact does not preclude a recovery on complete performance on a quantum meruit. Blankenship v. Decker, 34 Mont. 292, 85 P. 1035. This is a PLEADINGS, PRACTICE, ETC. 555 departure from the general rule. Blair v. Austin,, 71 Neb. 401, 98 N. W. 1040; Eodenbrock v. Gress, 74 Neb. 409, 104 N. W. 758 ; Barney v. Lasbury, 76 Neb. 701 , 107 N. W. 989 ; Stout v. Humphrey, 69 N. J. L. 436, 55 A. 281 ; Leimbach v. Regner, 70 N. J. L. 608, 57 A. 138 ; Goldstein v. Scott, 78 N. Y. S. 736, 76 App. Div. 78 (N. J. Law applied). Defendant contracted to give plaintiff the right for sixty days to sell its property at not less than a stated price, plain- tiff to have any excess. Plaintiff transferred the option, and the transferees secured a man to look at the property after the expiration of the option, but who refused to buy at the price named, and on their notifying defendant, defendant sold to him at a smaller price. Held, that the plaintiff could not recover on a quantum meruit for the services rendered, having failed to fulfill the condition which alone entitled him to pay- ment for his services. Johnson v. Va. & Car, Lumber Co., 163 F. 249, 89 C. C. A. 632 ; Smith v. Va. & Car. Lumber Co:, 163 F. 249, 89 C. C. A. 632. Compare Sec. 557. Where the contract between the owner of real estate and a broker employed to sell the same is void because not in writing as required by the statute, the broker can not recover on a quantum meruit for services rendered in accordance with the contract, nor for the value of his time expended in that behalf. Nelson v. Webster, 83 Neb. 169. 119 N. W. 256; Barney v. Lasbury, 76 Neb. 701, 107 N. W. 989. A petition alleged the employment of plaintiff to find a pur- chaser for land and assist in effecting a sale for an agreed compensation, but that after the purchaser had been procured, and before a sale was effected, the land owner wrongfully re- pudiated the contract and completed the sale to the purchaser, and that the land owner had died since the sale, and that, by reason of his death, plaintiffs had become incompetent to tes- tify to conversations and transactions with him, and therefore unable to prove the contract, and that by reason of the prem- ises had elected to sue on a quantum meruit for the value of their services, instead of the compensation agreed on, states a good cause of action upon a quantum meruit, and is not de- feated because of the unnecessary explanatory references to the special contract, and plaintiff's incapacity to establish their 556 AMERICAN LAW HEAL ESTATE AGENCY. claim thereunder. Templeton v. Biegert (Kan. Sup. '09), 100 P. 654. Bankrupt agreed to pay claimant $10,000 commission for a sale of certain timber land to a specified person for $200,000; claimant made various efforts to effect a sale, but was unsuccess- ful, and thereafter the price was modified, and, with independent assistance, a sale was made to the purchaser named for $130,000. Held, that the broker having been regarded by his principal as instrumental in the consummation of the sale was entitled to compensation for the reasonable value of his services. In re Breen Lumber Co., 181 F. 909. A broker pleading as one cause of action the reasonable value of his services may show, to recover the same, though there was no express promise, that there was an agency and an appropria- tion of his services thereunder. Phoenix Securities Co. v. Ditt- mar, 224 F. 892, 140 C. C. A. 336. Owners' telegram to broker stating that a purchaser had wired an offer for the land asking for further information as to such purchaser and the terms under which he would buy, and advis- ing broker that they would be inclined to sell if they could get specified price net, did not bind owners to pay broker as commis- sion everything he could procure over such price, further action being necessary on the part of owners to make them liable even on quantum meruit. Parker v. Lindsay, 176 "N. W. 1018, S. D. . Where no price is agreed upon between the seller of real estate and his broker who is engaged to exchange his property for other property as basic value, and no compensation for services is agreed upon, the measure of recovery in broker's action for com- pensation will be the reasonable value of the services rendered as shown by the ordinary and customary charges for like services in the community. Morrison v. Jackson, 85 S. 573, Ala. App. . Where the amount of broker's compensation for services in ef- fecting an exchange of lands is not agreed on, the fair market value of the property exchanged, or offered for exchange, would be competent and relevant, but not necessarily controlling, on the question of the reasonable value of the services rendered. Id. A broker who introduced the purchaser to the seller can not PLEADINGS, PRACTICE, ETC. 557 recover from the seller any compensation on a quantum meruit, unless there is proof of an agency, express or implied. Ooetz v. Herman, 111 A. 235, Del. Super. . Sec. 588. Broker has a right of action against defaulting purchaser for lost commissions. A real estate broker may sue the purchaser who employed him and who has refused to carry out his contract with the vendor, whereby the broker has lost his right to a commission, and this, although he had agreed to look to the vendor for the commission. Livermore v. Crane, 26 Wash. 529, 67 P. 221, 57 L. R. A. 401. Compare Sec. 425. Sec. 588a. Broker's right to recover from vendee price paid for property purchased for him. Where a broker purchases property, without disclosing the name of his principal, he becomes liable personally for the price, and he can collect such price from his principal, unless the latter can show payment to the vendor or a release from the broker; and it is immaterial whether the broker disclosed to the vendor that he was acting as an agent only. Knapp v. Simon, 96 N. Y. S. 284; Mechem on Ag., Sec. 653. Sec. 589. No right in equity arises out of a verbal contract for the sale of land. Where a person assumed, without authority, to act as agent for the sale of real estate, and the contract is merely verbal, the person injured by relying on such representations has no remedy in equity against him for damages on the ground of part performance. Warr v. Jones, 24 Weekly Rep. Gas. (Eng.) 695. Sec. 590. Statute of frauds. A contract for the purchase or sale of lands for another, not being for the sale of land but for personal services, will not be offensive to the statute of frauds, because not in writing. Ivy Coal Co. v. Long, 139 Ala. 535, 36 S. 722; Stephens v- Bailey, 149 Ala. 256, 42 S. 740 ; Monroe v. Snow, 131 111. 126, 23 N. E. 401; Ward v. Lawrence, 79 111. 295; Fox v. Starr, 106 111. App. 273; Collins v. Smith, 18 111. 160, 162; Watson 558 AMERICAN LAW REAL ESTATE AGENCY. v. Sherman, 84 111. 263, 267; Fisher v. Bell, 91 Ind. 243; Talbot v. Bowen, A. K. Mar. (Ky.) 436; Houston v. Boagni, McGloin (La.), 164; Hamilton v. Frothingham, 59 Mich. 253, 26 N. W. 486; Waterman R. E. Ex. v. Stephens, 71 Mich. 104, 38 N. W. 685; Hancock v. Dodge, 85 Miss. 228, 37 S. 711; Gwinnup v. Sibert, 106 Mo. App. 709, 80 S. W. 589; Riley v. Minor, 29 Mo. App. 439; Worrell v. Munn, 5 N. Y. 229; Wilson v. Clark, 35 Tex. Civ. App. 92, 79 S. W. 649 ; Yearly v. Grigsby, 9 Leigh (Va.), 387. In some States, by statute, a contract with a broker to pur- chase or sell land, must be in writing Arkansas, California, Idaho, Indiana, Missouri, Nebraska, New Jersey, New York, Ore- gon, South Dakota, Illinois, Washington. Wysing v. Sills (Ind. App. '09), 88 N. E. 954; Farland v. Boyum (Wash. Sup. '09), 102 P. 34; McCarthy v. Loupe, 62 Cal. 299, 10 P. C. L. J. 562; Pacific Land & Trust Co. v. Blochman, 11 P. C. L. J. 24; Per- Tcins v. Cooper (Cal. Sup. '90), 24 P. 377; Bissell v. Terry, 69 111. 184; Rothwell v. Gibson, 121 Mo. App. 279, 98 S. W. 801; Kesner v. Miesch, 204 111. 320, 68 N. E. 405 ; Milne v. Kleb, 44 N. J. Eq. 378, 14 A. 646, 810; Finley v. Hanley, 121 Mo. App. 358, 98 S. W. 803; Mendles v. Danish, 74 N. J. L. 333, 65 A. 888; Briggs v. Bounds, 48 Wash. 579, 94 P. 101; Danielson v. Goebel, 71 Neb. 300, 98 N. W. 819; McGury v. Satchwell, 129 Cal. 389, 62 P. 58; Dotson v. Toole, 129 Cal. 488, 62 P. 92; Waiters v. Dancey (S. D. '09), 122 N. W. 430; Heyman v. Stopper, 91 A. 1069, 86 N. J. Law, 357, aff. judg., 88 A. 946, 85 N. J. Law, 128 ; Shaw v. Corbett, 185 P. 585, Or. Sup. . Where plaintiff, at defendant's request, procured the title to real estate, taking it in his own name, and afterward con- veyed it to defendant, defendant's agreement to pay him for his services one-half of the sum for which the real estate might be sold, is not within the statute of frauds. Huff v. Hardwick, 19 Colo. App. 416, 75 P. 593. A broker who has made a parol contract of sale of realty can not, after his principal has contracted to sell the land to another purchaser and has so informed the broker, make such a memorandum as will take the case out of the operation of the statute of frauds. Elliott v. Barrett, 144 Mass. 256, 10 N. E. 820. PLEADINGS, PRACTICE, ETC. 559 Under Civil Code, Sec. 1624, Sub. 6, requiring that a bro- ker's authorization to sell shall be in writing, a memorandum of authority is not fatally defective because it did not recite the terms of sale and amount of payments. Baird v. Loescher, (Cal. App. '08), 98 P. 40. In an action to recover commissions for selling realty owned by defendant and K., the plaintiff alleged that in offering the property for sale defendant acted as agent for K., and as such agent made an oral agreement to pay plaintiff a reasonable commission for selling the property. Civil Code, Sec. 1624, re- quires agreements authorizing the sale of realty, or some memo- randum thereof, to be in writing and signed by the party to be charged or his agent. Held, that, conceding that the bro- ker could contract orally with another as to the compensa- tion he was to receive from the owner for selling realty, the plaintiff did not allege any written contract by defendant with K., and hence he was entitled to no compensation which could be the subject of an oral contract with plaintiff ; so that whether the complaint charged defendant individually or as agent for K., the oral agreement with plaintiff for commissions was in- valid. Aldis v. Schleicher, 9 Cal. App. 372, 99 P. 526. The provisions of the statute of frauds which require the authority for selling land as a basis for a broker's commission to be in writing, signed by the owner or his authorized agent, is not complied with, where the person who signed is neither the owner nor his authorized agent. Ryer v. Winter (N. J. Sup. '09), 72 A. 84. A declaration which sets out that defendant employed plain- tiff to sell real estate, and a promise by the defendant to pay for such services, need not set out that the authority for selling and the statement of the rate of commissions were in writing, as a statutory requirement to that effect is a matter of evidence only. Adams v. Grady (N. J. Sup. '09), 72 A. 55. Burns' Annotated Statutes, 1908, Sec. 7463, provides that no contract for the payment of a commission to a broker for securing a purchaser for real estate shall be valid, unless in writing signed by the owner. Held, that the fact that a bro- ker has fully performed his part of the contract does not take the case out of the statute. Price v. Walker (Ind. App. '09), 560 AMERICAN LAW REAL ESTATE AGENCY. 88 N". E. 78. Compare Muir v. Kane (Wash. Sup. '09), 104 P. 153. A contract whereby a broker was to procure a purchaser for real estate and also for personal property was within the statute. Price v. Walker (Ind. App. '09), 88 N. E. 78. Since the statute renders invalid a contract for the payment of commissions for procuring a purchaser for real estate, un- less the contract be in writing, signed by the owner, an oral contract within the statute, though valid in the State where made, can not be enforced in Indiana. Price v. Walker (Ind. App. '09), 88 N. E. 78. Though the statute provides that any agreement authorizing an employe as an agent or broker to sell or purchase real es- tate for a commission shall be void unless the agreement or promise, or some note or memorandum thereof, be in writing, where the broker sells the land under an oral agreement au- thorizing the service, the moral obligation of the owner to pay for the services is sufficient to sustain a subsequent written agreement to pay therefor. Muir v. Kane ("Wash. Sup. '09), 104 P. 153. Compare Price v. Walker (Ind. App. '09), 88 N. E. 78. A modification of a written contract employing a broker to procure a purchaser of real estate for $5,000, at a commis- sion of five per cent., by authorizing the broker to sell for $4,500, is material, and under Burns' Ann. Stat., 1908, Sec. 7463, providing that no contract for the payment of commissions for procuring a purchaser shall be valid unless the same is in writ- ing, signed by the owner, an action does not lie on the altered contract unless the alteration is evidenced by a writing signed by the owner. Wellinger v. Crawford (Ind. App. '09), 89 N. E. 892. Under a statute providing that any agreement authorizing a broker to sell or purchase real estate for commissions shall be void unless the agreement, or some memorandum thereof is in writing signed by the parties to be charged therewith, a memo- randum which authorizes no broker, describes no real estate, contains no agreement for the payment of commissions, and is not signed by the parties, is insufficient. Swartswood v. Naslin (Wash. Sup. '10), 106 P. 770. An agreement by a broker to give a purchaser of land his PLEADINGS, PBACT1CE, ETC. 561 commissions is not within the statute of frauds. Spengeman v. Palestine Bdg. Ass'n, 60 N. J. L. 357, 37 A. 723. An agent who has invested his principal's money in land and taken the title in his own name, will not be allowed to set up the statute of frauds against the enforcement of the trust, on the ground that the agency was without written authority. Firestone v. Firestone, 49 Ala. 128 ; Lopsed v. Fritz, 91 N. Y. S. 5, 45 Misc. 620. A memorandum signed by the auctioneer selling real es- tate, describing the land sold and stating the terms of sale, binds both buyer and seller, and is a compliance with the stat- ute of frauds. Garth v. Davis, 27 Ky. L. K. 505, 85 S. W. 692. The full performance by the broker of an oral contract to sell land for another on commission, does not take the contract out of the statute of frauds. L. 0. L. Sec. 808; Taylor v. Peterson, 147 P. 520, 76 Or. 77; Lueddeman v. Rudolph, 155 P. 172, 79 Or. 249, den. re., 154 P. 116, 79 Or. 249. If a broker procure a purchaser able and willing to purchase as agreed, the fact that the purchaser's contract with the owner was not enforceable under the statute of frauds would not pre- vent recovery of commissions. Allgood v. Fahrney, 146 N. W. 42, 164 Iowa, 540; Goldsberry v. Eades, 142 S. W. 1080, 161 Mo. App. 8. Oral agreement for performing services connected with buying and selling realty to be compensated out of the profits of real estate when realized, especially where extending over an indefinite period of time, while not within the letter of the statute of frauds, is tainted with the evil at which it is aimed. Thompson v. Hurson, 167 N. W. 926, 201 Mich. 685. Contract employing a broker to negotiate a sale of land to merely entitle him to a commission need not be in writing under the general statute of frauds, though it must be for him to exe- cute a binding contract of sale. Vral)lae v. Kacurelc, 199 S. W. 876, Tex. Civ. App. . Eem. Code 1915, Sec. 5289, subd. 5, requiring contracts em- ploying a broker to sell real estate to be in writing; held, not to apply where, at the time of employment to sell, employer had only an unaccepted option for the purpose of exclusive right to sell, and so was not owner. Maloney v. Montana Ranches Co., 170 P. 567, Wash. Sup. . 562 AMERICAN LAW EEAL ESTATE AGENCY. By Statute of Frauds, L. 0. L. Sec. 808, subd. 8, writing em- ploying a broker to sell or exchange realty must state the amount of commission agreed to be paid. Oregon Home Builders v. Crowley, 170 P. 718, 87 Or. 517, re. den., 171 P. 214, 87 Or. 517. Writing signed by owner employing corporation to procure an exchange reading, "and agree to pay as commission 2^% of selling price off price for which property was sold, or at which it exchanged," satisfied statute of frauds, L. 0. L., Sec. 808, subd. 8, by expressing consideration. Id. Where corporate realty broker effected an exchange of prop- erty, it converted employer's promise to pay commission into obligation to pay, and transferred into binding agreement satis- fying the statute of frauds, L. 0. L., subd. 8, employer's written offer to pay for services. Id. Correspondence held not /to show a contract of employment of plaintiff by defendant, as his broker to sell land, within L. 0. L., Sec. 808, requiring written memorandum of such contract ex- pressing the consideration. Gt. Western Land Co. v. Waite, 171 P. 193, 87 Or. 488, den. re., 168 P. 927, 87 Or. 488. Under L. 0. L., Sec. 808, subd. 8, requiring broker's contract to buy or sell to state consideration, the consideration, while it must be expressed, need not be formally and precisely expressed, and is expressed if it appears by necessary inference. Oregon Home Builders v. Crowley, 171 P. 214, 87 Or. 517, den. re., 170 P. 718, 87 Or. 517. A writing offered may constitute a sufficient memorandum of a broker's contract required by L. 0. L., Sec. 808, subd. 8, to charge the party making it, if it is later accepted by parol. Id. Correspondence between realty brokers and officer of bank and sale by bankers; held, insufficient to satisfy the statute of frauds as to contract for commissions. Larne v. Farmers & Mechanics Bank, 172 P. 1146, Wash. Sup. . A contract to pay a broker commissions for procuring a pur- chaser of land, to be enforceable, must be wholly in writing, un- der Burns's Ann. Stat. 1914, Sec. 7463, a contract partly in writing and partly in parol being insufficient. Peters v. Martin, 122 N. E. 16, Ind. App. . The provision of the statute of frauds ithat refers to oral agree- ments for the sale of interests in land does not affect an agent's PLEADINGS, PRACTICE, ETC. 563 right to compensation for selling land pursuant to oral instruc- tions. Cook v. Smith, 80 S. 777, 119 Miss. 375. The manifest purpose of Burns's Ann. Stat. 1914, Sec. 7463, relating to commissions of real estate agents, is to protect real estate owners against imposition and fraud, and not to enable such owners to work the same result against others, so that the operation of the statute should not be extended further than to make its spirit and purpose effective. Stockberger v. Zane, 125 N. E. 65, Ind. App. . Broker's employment contract authorizing a broker "to sell the property hereinafter described, to-wit, 40 acres at Forrest, lo- cated in , for the sum, etc." Held, not to entitle broker to recover commissions, on owner refusing to perform by selling property to procured purchaser, the description being insufficient under the statute of frauds. Big Four Land Co. v. Daracunas, 190 P. 229, Wash. Sup. . Statute of frauds, Sec. 10, as amended by act, May 1, 1911 (P. L., p. 703), Sec. 1, declaring that no broker selling land for an owner shall be entitled to a commission for the sale unless authority for selling is in writing, signed by the owner, or is recognized in a writing or memorandum signed by the owner, whether or not such writing or memorandum be signed before or after the sale has been effected, is satisfied by a recital in the agreement of sale executed by the owner, but not delivered to the purchaser, that "K" is recognized as the broker negotiating the sale, and that party of the first part agrees to pay a specified commission." Kelly v. Demorest, 111 A. 273, N. J. Sup. . Sec. 591. Real estate agent not liable for failure to remove snow from sidewalk. Real estate agents, whose agency is restricted to the collec- tion of rents of property or the soliciting and submission of offers to purchase, are not within the meaning of an act of Congress requiring the owner, agent or tenant of real estate within the district to remove snow and ice from paving side- walks in front of their property, and are therefore not liable to the penalties of that statute. Holtzman v. U. 8., 14 App. (D. C.) 454. 564 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 592. Seals, and the necessity for their use. A real estate agent whose authority is first put in writing in a contract for a sale between the vendor and vendee which is not under seal, can not recover commissions for the sale. Alpern v. Klein (N. J. Sup. '08) , 68 A. 799. It requires an instrument under seal to ratify the unauthor- ized deed of an agent. Spofford v. Hobbs, 29 Me. 148; Drum- right v. Philpot, 16 Ga. 424; Reese v. Medlock, 27 Tex. 120. Where the act of the principal is required to be done in the name of the principal, the authority to do the act must be conferred by an instrument under seal. Mitchell v. Sprout, 5 J. J. Marsh. (Ky.) 264; Clark v. Graham, 6 Wheat. (U. S.) 577 ; Butterfield v. Beall, 3 Ind. 203. In Illinois a power of attorney not under seal will be suffi- cient to authorize the attorney to sell land, but not to make a conveyance. Watson v. Sherman, 84 111. 263, 267. See also Sec. 57. A contract under seal between the vendor and vendee contained a provision that plaintiffs were recognized by the vendor, the de- fendant, as the brokers in the transaction and entitled to a com- mission; held, that the plaintiffs could recover the specified com- mission, whether the contract was one made between others for their benefit or a contract between plaintiffs and defendant. Tapscott v. McVey, 81 A. 348, 82 N. J. Law, 35, judg. aff., 85 A. 343, 83 N. J. Law, 747. Sec. 593. When tender of written agreement by purchaser not necessary. The broker is not obliged to cause the party willing to pur- chase to tender to the seller a written agreement to that effect. Cook v. Kroemeke, 4 Daly (N. Y.), 268. Sec. 594. Employment of broker to measure land does not sus- tain claim of broker for selling. Evidence that testator employed claimant, a real estate bro- ker, to procure persons to go on certain premises, measure them and look at them, for the purpose of inducing the tenant to believe that they intended to purchase, does not support a verified claim for commissions on a sale of the house for tes- tator. Von Hermanni v. Wagner, 30 N. Y. S. 991, 81 Hun, 431. PLEADINGS, PRACTICE, ETC. 565 Sec. 595. Where title taken by broker to land purchased, prin- cipal may tender amount and demand deed. Where a broker acting for his principal has taken the title to land purchased in his own name, the principal, on tendering the amount paid for the land and an amount sufficient to com- pensate the agent for his services, and a deed for him to exe- cute and demand execution thereof, the agent refusing, may recover the land in ejectment. Rose v. Hayden, 35 Kan. 106. Contra, Burden v. Sheridan, 36 Iowa, 125; Dorsey v. Clark, 4 Harr. & J. (Md.) 551. Compare Sec. 368. Sec. 596. When not necessary for broker to show vendor had a clear title. Where defendant did not base his refusal to carry out an agreement to purchase property upon any invalidity of the owner's title, it was not necessary for the broker, in suing for the commissions for negotiating the purchase, to show that the title was clear. Hanna v. Espella, 148 Ala. 313, 42 S. 443. See Sec. 839. Sec. 596a. Broker entitled to commission under contract upon corporate employer acquiring title to land. Where a contract employing brokers to purchase in entire allotments, providing for commissions on corporation securing title through some other source, the brokers' commissions were earned on the corporation acquiring title from another source, within the time limited, though the price was in excess of that the brokers were authorized to offer. Lord v. Wapato Irr. Co., 142 P. 1172, 81 Wash. 561, aff. on re., 152 P. 329, 84 Wash. 696. Sec. 596b. Marketable title in fee simple necessary to give broker right to commission, in absence of binding con- tract with purchaser. A marketable title in fee simple to property desired to be pur- chased by a principal is necessary to sustain a broker's claim for 566 AMERICAN LAW REAL ESTATE AGENCY. commissions, when the purchaser has not entered into a binding contract to purchase. Kinney v. Eckenberger, 145 P. 665, 74 Or. 442. Sec. 597. Contract of sale requiring owner to furnish ab- stract of title not within authority of broker. "Where, in an action by a broker for commissions in procuring a purchaser for a tract of land, it appeared that the contract of employment only fixed the price, and that the broker exe- cuted a contract of sale binding the owner to furnish an ab- stract of title, an instruction that if the owner entered into the contract by which he authorized the broker to sell the land at the price named, and the broker entered into a contract for the sale thereof at the price named, to a person ready, able and willing to pay therefor, he was entitled to his commissions, was erroneous, on the issue whether the sale made by the bro- ker was on the terms on which he was authorized to effect a sale. Hunt v. Tuttle, 133 Iowa, 647, 110 N. W. 1026. See ref- erences under Sec. 307. Sec. 598. A custom or usage must be general before a court will declare its existence as a matter of law. The existence of a custom or usage to the effect that the broker shall be entitled to commissions in the event that his principal declines to complete the transaction negotiated, will not be declared by the court as a matter of law, unless it is notorious and universal. Durkee v. Vermont Cen. R. Co., 29 Vt. 127. See also Sec. 626. Sec. 599. Where a usage is proved, the law raises a presump- tion that the agent contracted with reference thereto. Where the evidence adduced is sufficient to prove that the usage among real estate agents is general, the law raises a pre- sumption that the agent knew the usage and contracted with reference to it. Cameron v. McNair, 76 Mo. App. 366. See also Sec. 626. PLEADINGS, PRACTICE, ETC. 567 Sec. 600. Unconstitutionality of statute requiring contract em- ploying broker to be in writing. Penal Code providing that in cities of the first and second class any person offering for sale real property without writ- ten authority shall be guilty of a misdemeanor, is unconsti- tutional, as improperly abridging the rights and privileges of citizens of one portion of the State with respect to a matter of contracts. Cody v. Dempsey, 83 N. Y. S. 899, 86 App. Div. 335 ; Grossmann v. Cominez, 79 N. Y. S. 900, 79 App. Div. 15. Statutes requiring such contracts to be in writing, in other States upheld. Baker v. Gillan, 68 Neb., 368, 94 N. W. 615; City of St. Louis v. McCann, 157 Mo. 301, 57 S. W. 1016 -, Eleine v. Marjorie Realty Co., 128 S. W. 980, 228 Mo. 607; Printz v. Mill, 135 S. W. 19, 233 Mo. 47. Sec. 601. Undisclosed principal. Plaintiffs, as brokers, entered into a contract for the pur- chase from defendant of certain bonds, claiming to act for an undisclosed principal and stipulating that they should in no manner be held liable on the contract which, as they had rea- son to believe, was made by defendant under a misapprehension as to the value of the bonds ; in fact, they were acting for them- selves, and there was no other principal. Held, that they could not maintain an action on the contract; not as agents for an undisclosed principal, because no such principal existed, nor as principals, because by their fraudulent misrepresentations they had secured immunity from liability on the contract as such, and estopped themselves from claiming rights which were correlative with such liability. Paine v. Loeb, 96 Fed. 164, 37 C. C. A. 434. Defendant agreed to furnish to a broker a certain amount of money to be used in the purchase of a mine which was to be conveyed to a corporation to be formed, in which defendant was to have a certain share of the stock, the money advanced to be repaid to him from the profits ; the broker purchased the mine, in accordance with the agreement, making a cash pay- ment thereon, w T hich was furnished by defendant, and executed his own notes for the deferred payments, defendant not being known in the transaction with the seller. Held, that the bro- ker and not the defendant was the purchaser, and that de- 568 AMEBICAN LAW EEAL ESTATE AGENCY. fendant could not be held liable on the note as an undisclosed principal. Krohn V. Lambeth, 114 Cal. 302, 46 P. 164. Com- pare Harper v. Nat. Bank, 54 0. S. 425. See also Sec. 583. One acting as agent of an undisclosed principal may be treated as the principal by the party with whom he deals. Welch v. Goodwin, 123 Mass. 71; Pentz v. Stanton, 10 Wend. 271; Bickford v. First Nat. BTc., 42 111. 238; Baldwin v. Leon- ard, 39 Vt. 260; Lawler v. Armstrong (Wash. '09), 102 P. 775. Where the real party in interest is not disclosed to the ven- dor, the broker should not be allowed to prevail, on the theory that he has produced the agent of an undisclosed principal. Mott v. Minor (Cal. App. '09), 106 P. 244. Sec. 601a. Postal card insufficient under statute to constitute contract for broker's commissions. A postal card describing property offered for sale, and stating the terms of sale, though signed by the broker to whom it was addressed, was not a valid contract within tne Nebraska statute, which requires broker's contracts for the sale of land to be in writing, and signed by both parties. OsBorne v. Tfannatt, 149 K W. 913, 167 Iowa, 615. Sec. 602. Where broker must be authorized in writing, con- tract without unenforceable. Bevised Statutes 1899, Sec. 3418, providing that no contract for the sale of lands made by an agent shall be binding on the principal unless the agent is authorized in writing to make sucK contract, Held, that where the employment of the broker was not evidenced by the written consent of the land owner, a written con- tract to sell the same by the broker witH a purchaser was unen- forceable against the land owner. Young v. Ruhwedel, 119 Mo. App. 231, 96 S. W. 228; McMurran v. Duncan, 155 P. 306, 17 Ariz. 552; Fritz v. Mills, 150 P. 375, Cal. Sup. ; Aldis v. Schleisher, 99 P. 526, 9 Cal. App. 372; "Beaver v. Continental Bldg. & Loan 'AsJn, 116 P. 1105, 15 Cal. App. 190; Rleinenge PLEADINGS, PRACTICE, ETC. 569 & Heilbron v. Liness, 120 P. 444, 17 Cal. App. 534; Pronix v. Sacramento Valley Loan Co., 126 P. 509, 10 Cal. App. 529 ; Sel-. vage v. ToTbert, 95 K E 114, 175 Ind. 648, 33 L. E. A. 973, Ann. Gas. 1913 C, 724; Fullenwider v. Goben, 95 N. E. 1010, 176 Ind. 312; Price v. Walker, 88 N. E. 78, 43 Ind. App. 519; Wysong v. Sells, N. E. 954, 44 Ind. App. 238 ; Keith v. Smith, 89 P. 473, 46 Wash. 131, 13 Ann. Gas. 975; Gushing v. Monarch Timber Co., 135 P. 660, 75 Wash. 678, Ann. Gas. 1914 C, 1239 ; Gerard-Fillio Co. v. McNair, 123 P. 162, 68 Wash. 321 ; Reitz v. Bryant, 127 P. 583, 71 Wash". 53; Parker v. Bruggemann, 130 P. 358, 72 Wash. 309; 'Engelson v. Port Crescent Shingle Co., 133 P. 1030, 74 Wash. 424; Eothwell v. Gibson, 98 S. W. 801, 121 Mo. App. 279; Finley v. Handley, 98 S. W. 803, 121 Mo. App. 358; Kennedy v. Merickel, 97 P. 81, 8 Cal. App. 378; 'Sanchez v. Yerba, 97 P. 205, 8 Cal. App. 490; In re Balfour v. 'Garrotte, 111 P. 615, 14 Cal. App. 261 ; Curran v. Hubbard, 114 P. 81, 14 Cal. App. 733, re. den., 114 P. 83, 14 Cal. App. 733; 'Naylor v. 'Adams, 115 P. 81, 15 Cal. App. 548; Carrington v. Smithers, 147 P. 225, 26 Cal. App. 460; Mooney v. Thompson, 147 P. 1178, 26 Cal. App. 634; Phillips v. Jones, 80 1ST. E. 555, 39 Tnd. App. 626; Doney v. Laughlin, 94 N. E. 1027, 50 Ind. r App. 38; Olcott v. McClure, 98 ff. E. 82, 50 Ind. App. 79; Morton v. Gaffield, 98 K E. 100, 51 Tnd. App. 28; Lustig v. Malriclc, 82 A. 867, 82" K J. Law, 498; Mendles v. Danish, 65 K. 888, 74 . J. Law, 333; Foofe v. EoUins, 97 P. 103, 50 WasK. '277; 'Crouch v. Forces, 116 P. 14, 63 Wash. 564; Goodrich V. "Rogers, 134 P. 947, 75 Wash. 212; Thompson v. English, 135 SP. 664, 76 Wash. 23; Hutchens 'Co. v. Nichols, 142 P. 674, 81 Wash. 257; a7w v. Koy, 142 P. 679, 81 Wash. 261; Mason v. Bft7Zer, 179 HI. App. 347; EZoewm v. flmftfc, 161 IT. W. 830, Mich. Sup. ; Eyan v. TOfcer, 109 P. 417, Cal. App. ; ^Elmore v. Brunniman, 123 N. E. 248, Ind. App. ; Lewis v. Tape joy, 123 K E. 646, Ind. App. ; Ttugh v. Soleim, 180 'P. 930, Or. Sup. ; Weatherhead v. 'Cooney, 180 P. 760, Idaho Sup. ; Jfwrpfcy v. Willis, 219 S. W. 776, Ark Sup. ; Eaton v. Yount, 191 P. 1009, Cal. App. . See also Sec. 433. 570 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 602a. Manner in which written contracts with real es- tate brokers employed to sell real estate should be con- strued and enforced. Laws of 1905, p. 110, c. 58, requiring an agreement employing a real estate broker to be written, should be enforced as designed to prevent vendors and purchasers from being defrauded by brokers wrongfully claiming commissions, but not in such man- ner as to defraud brokers. McCree \. Ogden, 50 Wash. 495, 97 P. 503, three judges dissenting. Sec. 602b. Broker entitled to commission when owner and customer reach an agreement. Broker entitled to commissions when his customer reaches an agreement with the owner as to terms of sale, though agreement not reduced to writing and signed by the parties. Arnold v. Schmeidler, 129 NT. Y. Sup. 408, 144 App. Div. 420. Sec. 602c. Broker entitled to commission on sale on contract held a contract to sell and not of agency. A contract by A. to give B. the exclusive sale of land for ninety days and to execute deed either to B. or persons to whom he might sell, B. to take any land remaining after the expiration of such time, was a contract of sale and not of agency, and the broker who brought the parties together was entitled to commis- sion. Ansley Realty Co. v. Pope, 151 S. W. 525, 105 Tex. 440, 'rev. judg., Civ. App., Pope v. Ansley Realty Co., 135 S. W. 1103. Sec. 602d. Contract signed by one, and later by all tenants in common, held sufficient for broker's commissions. Under statute of frauds (2 Comp. Stat. 1910, p. 2617), Sec. 10, providing that a broker selling land is not entitled to a commission unless the employment is in writing, where the con- tract for employment of a broker to sell land, which complied with the statute, was signed by one of several tenants in com- mon, such authority, and the subsequent agreement by all the PLEADINGS, PRACTICE, ETC. 571 tenants in common to convey, held sufficient. Freeman v. Van Wegemen, 101 A. 55, N. J. Sup. . Sec. 602e. Contract of employment must be in writing, whether broker or middleman. Under Civil Code, Sec. 1624, subd. 6, requiring real estate employment contracts to be in writing, there is no distinction be- tween a middleman and an agent as applied to real estate bro- kers. Ryan v. Walker, 109 P. 417, Cal. App. . Sec. 603. Broker can not recover commissions where contract unenforceable. A real estate agent can not base a claim for commissions on a contract of sale which, because of its incompleteness, can not be enforced. Bradford v. Menard, 35 Minn. 197; Mason v. Small, 130 Mo. App. 249, 109 S. W. 822 ; Shepard-Teague Co. v. Hermann, 107 P. 622, 12 Cal. App. 394. See also Sec. 209. Sec. 603a. Contract of employment to purchase land not re- quired to be in writing. Defendant employed plaintiff to negotiate with the owner of land for its purchase by defendant, at a price fixed by him. This plaintiff accomplished. In an action to recover for services rendered under such contract, it was argued that the contract, not being in writing, plaintiff could not recover under the stat- ute of frauds (2 Gen. St. 1895, p. 1604, Sec. 10) declaring that no real estate agent shall be entitled to a commission for a sale or exchange of real estate, unless the authority for selling or exchanging the land is in writing. Held, that the employment of an agent to purchase land is not within the statute of frauds. Brown v. Winter, 77 A. 1021, 80 N". J. Law, 602, judg. aff., 82 A. 934, 82 K J. Law, 729. Sec. 604. Contract by unlicensed broker not absolutely void. Under the Code requiring a license to practice the business of a broker, and imposing a penalty for the violation thereof, a 572 AMEKICAN LAW REAL ESTATE AGENCY. contract of an unlicensed real estate broker to sell real estate for another is not absolutely void. Cobb v. Dunlevie, 63 W. Va. 398, 60 S. E. 384; Smith v. Sharp (Ala. Sup. '09), 50 S. 381; ManJcer v. Tough, 98 P. 792, 79 Kan. 46, 19 L. E. A. (N. S.) 675, 17 Ann. Gas. 208; Sullivan v. Duratt, 109 P. 777, 83 Kan. 799; Hughes v. Snell, 115 P. 1105, 28 Okl. 828, 34 L. E. A. (N. S.) 1133, Ann. Gas. 1912 D, 374; Calhoun v. Egunbach, 124 P. 978, 34 Okl. 185. See also Sec. 576. Sec. 605. Agreement to hire auctioneer to sell land need not be in writing. Plaintiff was employed by defendant to advertise property for sale at auction, and secured an auctioneer and took charge of the sale; after plaintiff had advertised the property and secured an auctioneer, but before the day of sale, defendant sold the property privately, and thereupon agreed with plain- tiff to pay him two per cent, of the price for what he had done. Held, that the agreement was not within the statute which re- quires a writing to entitle brokers to commissions for selling real estate, and is valid. Griffith v. Daly, 56 N. J. Law, 466, 29 A. 169. Sec. 606. Memoranda held insufficient to meet the requirements of the statute of frauds. Ballinger's Acts and Statutes, Sec. 4576, provides that an agreement authorizing or employing a broker to sell or pur- chase real estate for compensation or commission shall be void unless the contract or some note or memorandum thereof be in writing, signed by the party to be charged; in an action by a broker he relied on a memorandum addressed to himself reading: "Enclosed find contract which S. wishes signed by P. and confirmed by E. Advise us when abstract is ready," and signed by one of the defendants, S. being the other de- fendant; F. having represented the owner of the land and E. being the owner, and the abstract being an abstract of title to the land. Held, that the memorandum was insufficient under the statute. Keith v. Smith, 46 Wash. 131, 89 P. 473 ; McCrea PLEADINGS, PBACTICE, ETC. 573 v. Ogden (Wash. Sup. '09), 103 P. 788; Mendenhall v. Rose (Sup. Ct. Cal. '93), 33 P. 884; Phillips v. Jones, 39 Ind. App. 626, 80 N. E. 555. Sec. 607. Statute of limitations. Where a broker sold certain property under a contract by which the purchaser leased the same for a term of years with an option to purchase, which option was exercised December 31, 1902, the broker's right to commissions did not accrue until that time, and was not barred by the three years' statute prior to the commencement of the action to recover the same on June 27, 1904. Coates v. Locust Point Co., 102 Md. 291, 62 A. 625. If a broker having charge of the property of a syndicate makes a contract of sale of lots to a nominal purchaser to show business, and such purchaser assigns to a l)ona fide purchaser who completes the sale, the statute of limitations will run against the broker's claim for commissions as of the date of the bona fide sale, and not of the nominal one. Ross v. Fick- ling, 11 App. Gas. (D. C.) 442. An action against real estate brokers for deceit in selling land is governed by the statute requiring actions for debt not evidenced by a written contract, to be brought within two years. Gordon v. Rhodes (Tex. Civ. App. '09), 116 S. W. 40. A right of action by an agent against his principal for reim- bursement for money paid out in defending a suit for breach of warranty of land sold at the principal's request, would not arise until the agent paid the judgment against himself, so that an action brought within six months thereafter would not be barred by limitations, and limitations would not begin to run to bar recovery of the expenses of defending the suit until the last item was paid, as in the case of a running account. Shearer v. Guardian Trust Co. (Mo. App. '09), 116 S. W. 456. A purchaser was induced by fraudulent representations of the broker of the vendor to purchase land for $12,500, $5,000 of which was to be in cash, and the balance in notes. The pur- chaser paid to the vendor $2,500 of cash, and it was under- stood that $2,527 should be paid by the broker to the owner on the purchaser's account. Payment was not made, and the purchaser did not discover the fact until four years and ten 574 AMERICAN LAW REAL ESTATE AGENCY. months had elapsed. Held, that the right of the purchaser to recover from the broker as for deceit was barred by the four years' statute of limitations. Gordon v. Rhodes (Tex. Civ. App. '09), 117 S. W. 1023, certified questions answered, 116 S. W. 40. Sec. 608. Rival brokers. One of several independent brokers employed to procure a purchaser must produce a customer of his own, and not one then sustaining that relation to another of the brokers, and when he is first in negotiating with a customer he will con- tinue to sustain that relation until it is expressly broken off or the matter of the purchase has ceased to be held under con- sideration by the purchaser. Jennings v. Trummer, 52 Oregon, 149, 96 P. 874. "Compare Sec. 445. Sec. 609. If purchaser willing to perform, statute of frauds not available to defeat broker's commissions. A real estate broker, in order to recover commissions, must show either a consummation of the sale or the obtaining of a purchaser; the mere fact, however, that the contract was within the statute of frauds does not preclude a recovery for commissions, if a willingness to perform the same is shown. Carter v. Simpson, 130 111. App. 328; McKenna v. Harvie, 38 Minn. 18, 35 N. W. 668. This is true also in the case of a con- tract to exchange properties. Schulte v. Meehan, 133 111. App. 491. Sec. 610. Reasonable price inferred by law. Where a contract for the sale of land between the owner and a couple of real estate agents provides that the owner shall fix its selling price, the law infers that it shall fix a rea- sonable price, and that the sale shall be made within a rea- sonable time. Tinsley v. Durfey, 99 111. App. 239. Sec. 611. What is a reasonable time must be determined by the facts and circumstances in each case. In determining what constitutes a reasonable time within which a real estate broker employed to procure a purchaser for a farm must procure a purchaser in order to be entitled to his PLEADINGS, PRACTICE, ETC. 575 commissions, the facts and circumstances must be considered. Sallee v. McMurtry, 133 Mo. App. 253, 88 S. W. 157; Geiger v. Riser (Colo. Sup. J 10), 107 P. 267; Cocqugt v. Shower, 189 P. 606, Colo. Sup. . See also Sees. 612, 1080. Where an owner of premises agreed in September to extend the time within which a broker might sell to such time as he could get the prospective purchaser to bind itself to buy, and it was contemplated that the broker was to have until some time after the beginning of the year to make the sale, and the sale was, in fact, closed in April, active negotiations having been kept up all the time with the prospect of eventual success, the delay in closing the sale was not unreasonable, and did not, on that ground, authorize the revocation of the broker's au- thority without his consent. Luhn v. Fortran (Tex. Civ. App. '09), 115 S. W. 667. Writ of error denied by Supreme Court. Sec. 612. Broker's employment continues for a reasonable time. Where, at the time a broker was employed to sell real estate, no period was agreed on during which the agency should con- tinue, it continued for a reasonable time after the employment, in view of all the circumstances. Staehlin v. Kramer, 118 Mo. App. 329, 94 S. W. 785 ; Bailee v. McMurtry, 113 Mo. App. 253, 88 S. W. 157; Morgan v. Keller, 194 Mo. 663, 92 S. W. 75; Hanna v. Espalla, 148 Ala. 313, 42 S. 443; Turner v. Snyder, 132 Mo. App. 320, 111 S. W. 858; Geiger v. Kiser (Colo. Sup. '10), 107 P. 267; McFarland v. Boucher, 134 N. W. 91, 153 Iowa, 716; Geo. J. Wanstrath R. E. Co. v. Wenz, 170 S. W. 346, 185 Mo. App. 162; Sugarman v. Fraser, 128 N. Y. Sup. 718, 71 Misc. Kep. 416; Alexander v. Sherwood Co., 77 S. E. 1027, 72 W. Va. 195, 49 L. E. A. (N. S.) 985; Turner v. Snyder, 123 S. W. 1050, 139 Mo. App. 656; Dodge v. Childers, 151 S. W. 749, 167 Mo. App. 448; Barney v. Yazoo Delta Loan Co., 101 N. E. 96, 179 Ind. 337; Hall v. Olson, 114 P. 658, 58 Or. 464; Graf & Case Realty Co. v. Lovell, 163 S. W. 877, 180 Mo. App. 706 ; McCarney v. Lightner, 175 N. W. 751, Iowa Sup. ; Coc- quyt v. Showers, 189 P. 606, Colo. Sup. ; Shortridge v. Raiffreian, 222 S. W. 1031, Mo. App. . Compare Sees. 614, 620. 576 AMERICAN LAW'EEAL ESTATE AGENCY. Sec. G12a. Owner allowed reasonable time after purchaser procured to prepare abstract, deed, etc. Owner held entitled, after production of purchaser by broker, to reasonable time in which -to make deed, prepare abstract, cor- rect any correctible defects therein, and not liable for commis- sions if the purchaser refuses to allow such reasonable time. Bunyard v. Farman, 161 S. W. 649, 176 Mo. App. 89. What is a reasonable time for the owner of land to make a deed, prepare an abstract and correct any correctible defects therein, after the production of a purchaser by a broker, depends on the facts of each case. Id. Sec. 612b. Broker's contract of employment required owner to designate tracts and fix prices and terms within a reasonable time. Under contract of broker with landowner providing that owner designate tracts, and fix prices and terms, the owner must do this in a reasonable time. Dougherty v. Smith, 192 S. W. 1131, Tex. Civ. App. . Sec. 612c. Favorable reply of owner to broker's inquiry bound former for reasonable time for broker to find a purchaser. An owner of real estate is not bound for an indefinite period by his favorable reply to an inquiry as to the price of such real estate, made to a broker who agrees to furnish a prospective pur- chaser. Becker v. Hollesen, 198 111. App. 180. Sec. 612d. Broker's contract of employment in March held not ended in August. Where owner of real estate in March made an exclusive agency agreement for its sale, without limit excepting reservation to ter- minate on thirty days' notice; held, that the contract had not expired in August by mere lapse of time. Howard & Brown Realty Co. v. Barnett, 206 S. W. 417, Mo. App. . Sec. 613. Contract to pay plaintiff $1,000,000 if defendant bought railroad bound him only for a reasonable time. Where plaintiff alleged that defendant agreed to pay him $1,000,000 for information and services relating to the prospec- PLEADINGS, PBAOTICE, ETC. 577 tive purchase of a railroad, in case the defendant purchased the same or became interested in its purchase with others, such con- tract could not be construed to restrain defendant from becoming interested in the purchase of such railroad for all time, on pain of being liable on the contract, but only bound him not to par- ticipate in the purchase for a reasonable time unless he paid plaintiff for his services. Mengis v. Fitzgerald, 95 N. Y. S. 436, 108 App. Div. 24; Dyer v. Duffy, 39 W. Va. 148, 19 S. E. 540, 24 L. E. A. 339; Shaw v. Chiles, 71 S. E. 745, 9 Ga. App. 460. Sec. 614. Reasonable time immaterial where broker finds pur- chaser while employed. Where a broker finds a purchaser at the seller's terms while still employed, the reasonableness of the time which he has taken to do so is immaterial. Moore v. Boehm, 91 N. Y. S. 125, 45 Misc. 622; Tebo v. Weld, 92 A. 876, 5 Boyce, Del. Super. 255; Kurtz v. Payne Inv Co., 135 N. W. 1075, 156 Iowa, 376, re. den. but opinion modified, 133 N. W. 460 ; Ewan v. Power, 178 S. W. 1092, 165 Ky. 806. See also Sec. 628. Compare Sec. 612. Sec. 614a. When six months not unreasonable delay in ac- cepting broker's offer for finding a purchaser. Unreasonable delay in accepting an offer to pay a broker a commission for procuring a purchaser for land, by a letter dated Oct. 19, 1907, is not shown because acceptance was deferred until the spring of 1908, being not received until then and immediately accepted. Olcott v. McClure, 98 N". E. 82, 50 Ind. App. 79. Sec. 615. In the absence of an express agreement the reason- able value of the services may be recovered by broker. Where a real estate agent renders services in procuring a purchaser for land, with the owner's consent but without any agreement for the payment of a certain sum for such services, the agent is entitled to recover the reasonable value of the services. Stephens v. Tomlinson, etc. (Tex. Civ. App. '05), 88 S. W. 304; Hawkins v. Chandler, 8 Houst. (Del.) 434, 32 A. 464; Biester v. Evans, 59 111. App. 181; New Kanawha C. & M. Co. v. Wright, 163 Ind. 529, 72 N. E. 550; Carruthers v. Towne, 86 Iowa, 318, 53 N. W. 240; Holies v. Weston, 156 Mass. 357, 31 N. E. 483; Boardman v. Hanks, 185 Mass. 555, 578 AMERICAN" LAW EEAL ESTATE AGENCY. 70 N. E. 1012; Baer v. Koch, 21 N. Y. S. 974, 2 Misc. 334; Donald v. Lawson, 87 N. Y. S. 485; Lansing v. Johnson, 18 Neb. 174, 24 N. W. 726; McMurtry v. Madison, 18 Neb. 291, 25 N. W. 85; Harrell v. Zimpleman, 66 Tex. 292, 17 S. W. 478; Alexander v. Wdkefield (Tex. Civ. App. '02), 69 S. W. 77; McEwen v. Vallentine, 170 P. 490, Okl. Sup. .. See also Sees. 513, 587. Sec. 616. Reasonable compensation. What is a fair and reasonable compensation depends upon the amount allowed for such services by custom or usage locally prevailing among brokers. Hartman v. Warner, 75 Conn. 197, 52 A. 719 ; Williams v. Clowes, 75 Conn. 155, 52 A. 820 ; Semple v. Rand, 112 Iowa, 616, 84 N. W. 683; Thomas v. Brandt (Md. '93), 26 A. 524; Graves v. Dili, 159 Mass. 74, 34 N. E. 336; Ashby v. Holmes, 68 Mo. App. 23 ; Green v. Wright, 36 Mo. App. 298; Lansing v. Johnson, 18 Neb. 174, 24 N. W. 726; Potts v. Aechtermacht, 93 Pa. St. 138 ; Insloe v. Jones, Brightly (Pa.), 76. See also Sec. 626. Sec. 617. Not necessary for broker to put defendant in default before suing for fees. Where, after giving plaintiff a power of attorney to act as agent for the sale of defendant's real estate, plaintiff and a prospective buyer had started to meet the defendant at the property in another State, and defendant put an end to the agency and placed it out of his power to carry out the promise of sale by making a sale to a third person, there was no ne- cessity for plaintiff to put defendant in default before suing for his commissions. Luckett Land & Em. Co. v. Brown, 118 La. 943, 43 S. 628. Sec. 618. Ratification not shown by acquiescence without knowledge. In an action by a broker to recover commissions for making a sale, defendant's acquiescence in plaintiff's statement that plaintiff had secured a loan for a prospective purchaser did not fairly justify the conclusion that defendant ratified the agency claimed by plaintiff, as no claim of agency was sug- gested by plaintiff's statement. Howe v. Miller, 23 Ky. L. E. 1610, 66 S. W. 184. See also Sees. 458, 567. PLEADINGS, PRACTICE, ETC. 579 Sec. 618a. Reply of owner which did not amount to a rati- fication. A contract of sale executed by one having authority only to find a purchaser, and containing provisions not referred to in his letter to the owner that he had an offer of purchase on certain terms and not known to the owner, is not ratified by his reply, "All right, offer accepted." Hardinger v. Co- lumbia, 50 Wash. 405, 97 P. 445. See also Sec. 24. Sec. 618b. When knowledge of broker withheld from pur- chaser did not bind latter. The knowledge of a real estate broker, acting as the agent of the owner of land, as to whether certain buildings on the land sold were to be excepted, does not bind the purchasers. Alex- ander v. Anderson, 207 S. W. 205, Tex. Civ. App. . Sec. 619. Ratification by acceptance of offer made to broker. The acceptance by a vendor of land of an offer actually made to a broker, and the consummation of sale on such terms, is a ratification of the broker's act, and entitles him to his com- missions. Levy v. Wolf, 2 Cal. App. 491, 84 P. 313. Even when sold through another broker. Id. Sec. 620. Ratification cures defect in agent's appointment. An owner verbally authorized an agent to offer real estate for sale; the agent, in the name of the principal, gave a broker written authority to procure a purchaser for the land; the owner subsequently ratified the agent's act by offering per- formance of the contract of sale to the purchaser procured by the broker by tendering a deed conveying the premises. Held, that the defect in the appointment was cured by the owner's acts constituting ratification. Mercantile Trust Co. v. Niggeman, 119 Mo. App. 56, 96 S. W. 293. See also Sees. 24, 621, 622. Sec. 620a. Sufficient allegation of ratification. In an action for commissions claimed to have been earned by the purchase of land for defendant, where the latter claimed 580 AMERICAN LAW KEAL ESTATE AGENCY. that plaintiff acted in violation of his agency by paying a higher price per acre than he was authorized, etc., allegations of the complaint that plaintiff notified defendant from time to time of the purchases, the purchase price, amounts of payments, etc., and defendant, knowing of the purchases and terms thereof, ratified them, as well as the allegations of the reply that the payments of the land in excess of the prices thereof were made with defendant's knowledge and ratified by him, suffi- ciently alleged ratification. Mahon v. Rankin (Or. Sup. '09), 102 P. 608. Sec. 621. Ratification of agent's appointment by principal executing contract with purchaser. Where a contract to purchase land is presented to the ven- dor, signed by the purchaser, it is for the vendor to decide whether the purchase is acceptable, and if he then executes the contract himself, he ratifies the act of his agent in having pre- viously, though unauthorizedly, so done, it is binding on him. Flynn v. Jordal, 124 Iowa, 457, 100 N. W. 326; Findlay v. Koch, 126 Iowa, 131, 101 N. W. 766. See also Sees. 24, 620, 622. Sec. 622. Ratification by acceptance of the proceeds. A brother and sister were tenants in common of a tract of land, which the principal employed an agent to sell; the agent procured a purchaser and wrote to the brother a letter con- taining the terms of the contract of sale; the brother showed the letter to his sister, and the brother subsequently wired that the sale was accepted; on the death of the brother the sister {wrote to the agent with reference to the sale, and a draft for a part payment was received by her and cashed; she subse- quently orally agreed to a conveyance of the land according to the contract. Held, that she ratified the contract of sale. Stuart v. Mattern, 141 Mich. 686, 105 N. W. 35, 12 D. L. N. 616. See also Sees. 24, 620, 621. Sec. 623. To constitute ratification of the act of attorney, knowledge on part of principal immaterial. Where one authorizes an attorney in fact, by power duly signed and acknowledged, to make a certain contract for the purchase of land with certain parties, and of a certain date, and subsequently ratifies the act of his attorney, it is imma- PLEADINGS, PRACTICE, ETC. 581 terial whether he knew all the terms and conditions of the contract at the time it was made, and he will be bound by the contract made by such attorney. Bank v. Garvey, 66 Neb. 767, 92 N. W. 1025, 99 N. W. 666. Sec. 624. It is an essential prerequisite to ratification that the principal had knowledge of unauthorized contract. A signature to an agreement for the sale of land made for another without authority, may be by him adopted and rati- fied so as to be of the same force as if made by authority ante- cedently given, and such ratification may be inferred from cir- cumstances, but knowledge that there was such an agreement signed for him is an essential prerequisite to proof of his rati- fication. O'Reilly v. Keim, 54 N. J. Eq. 418, 34 A. 1073. See also Sec. 24. Sec. 624a. Sale by owner's son at reduced price to broker's customer barred broker's commission. Where a broker, with authority to sell land at $60,000, secured an offer by C. of $42,000, and a reduction by the owner to $48,000, but could not effect a sale, and the owner's son, with knowledge, sold to C. for $43,500, the broker was not entitled to commissions, the owner being without knowledge. Terry v. Bart- lett, 140 N. W. 1133, 153 Wis. 208. Sec. 625. Tender not necessary to entitle broker to recover on principal's refusing purchaser. Where a broker obtained a purchaser who in good faith of- fered to buy at defendant's price, a formal tender of the price was not necessary until defendant evinced some disposition to accept it, in order to entitle the broker to commissions. Carlin v. Lifur, 2 Cal. App. 590, 84 P. 292. Nor to bring the pur- chaser into the owner's presence. Getzelsohn v. Donnelly, 98 N. Y. S. 213, 50 Misc. 164. The refusal by the owner to accept the offer was a waiver of tender. McDermott v. Mahoney, 115 N. W. 32, 139 Iowa, 292, 106 N. W. 925; Moore v. BoeJim, 91 N. Y. S. 125, 45 Misc. 622 ; Fawver v. Fullingim, 149 S. W. 746, Tex. Civ. App. ; Parker v. Seattle Land & Home Co., 165 P. 1086; Leland v. Barber, 117 N. E. 33, 228 Mass. 144. See also Sec. 436. CHAPTER IV. SECTION. 626. Custom or usage. 626a. Custom insufficient to supply lack of employment as broker. 627. Defendant cannot object where evidence shows sale for less than broker claims. 628. Presumptions. 629. Assumpsit. 630. Actions between principals and agents. 631. Common counts. 632. Petition, ultimate facts must be pleaded. 632a. Petition in action to recover commissions. 632b. When right of action for com- missions accrues to broker. 632c. In action for division of com- mission, broker without agree- ment could not enforce pay- ment. 632d. Broker entitled to recover com- mission for loan when he shows he procured person able and willing to lend. G32e. Petition failing to show broker procured purchaser able, etc., or breach by seller, subject to demurrer. 633. Petition alleging failure to ex- change defective. G33a. In action between brokers facts which stated a cause of action. 634. Petition alleging sales to persons defective. 635. Petition alleging deed of trust not defective. 635a. Complaint not objectionable for 582 SECTION. failing to show that plaintiff found a purchaser on terms offered. 636. Petition that brokers have over certain sum when not breached. 636a. When proper to withdraw case from jury and enter a judg- ment of dismissal. 637. Petition on express contract may recover, when. 637a. Necessary allegations and proof to enable broker to recover commissions for effecting sale or exchange. 637b. Petition sufficiently setting out contract with firm of real estate broker to sell land. 638. Cannot recover on proof of sub- stituted contract. 639. Failing to prove agreed may recover reasonable. 640. Petition good against demurrer. 640a. Petition for commissions not de- murrable for failing to allege customer ready, able and will- ing to purchase. 641. When agent may recover without showing performance. 641a. Broker's action for commission for breach of defendant's con- tract therefor did not need to allege fraud. 642. To recover money broker refuses to pay, need not allege he had authority to collect. 642a. Broker not liable to principal for money refunded on rejected contract. PLEADINGS, PRACTICE, ETC. 583 SECTION. 642b. Broker receiving money for his principal not liable to repay or suit by party entitled thereto. 642c. Circumstances under which party entitled to money may sue agent for its recovery. 643. Alleging sale by owner ending contract demurrable. 644. Alleging notice of double em- ployment not demurrable. 645. Bringing parties into touch in- sufficient. 646. Alleging defendant accepted serv- ices when good. 647. Failing to show written con- tract, rest immaterial. 648. Incomplete opies of unsigned letters demurrable. 649. Petition for commission on pass- ing of title defective. 649a. Petition which failed to state cause of action. 649b. Broker's failure to state per- formance of contract stated no cause of' action. 650. For procuring tenant in not alleging to sell. SECTION. 650a. Complaint defective for failure to properly state contract of employment. 651. Agreement to pay as commission all over enough. 652. Petition for commissions for selling bonds defective. 653. Out of last cash payment must aver such payment. 653a. Petition for commission from funds collected must aver same was adequate for the purpose. 654. Not alleging agreement stated made defective. 655. Asking judgment for excess de- murrable. 656. Petition sufficient without alleg- ing sale for the purpose of defrauding plaintiff. 656a. Petition not defective as alleging contract in violation of bro- ker's duty. 656b. Petition against broker for fraud in exchange of land. 656c. Petitions held demurrable. 656d. Petitions held sufficient. 656e. Parties to actions. Sec. 626. Custom or Usage. A custom that did not require purchasers of land to pay cash, although the terms of sale were for cash payments, will not sustain a contract of sale made by a real estate agent which violated an instruction to sell for one-third cash. Wandless v. McCandless, 38 Iowa, 20. Where a principal claimed that its broker had been notified of its custom to give only quit- claim deeds to purchasers of its real estate, evidence to show that after its refusal to give a deed with warranty, it offered to give such a deed if an increased price was paid was ad- missible to show that no such custom existed. Beach v. Trav- elers' Ins. Co., 73 Conn. 118, 46 A. 867. Where a custom ex- ists among real estate agents and their customers which en- titles the agents to commissions on a sale of land placed in their hands, whether the sale is made by them or by others, 584 AMERICAN LAW REAL ESTATE AGENCY. during the period it is under their control, such custom amounts to a contract when it is known to their customers. Harrell v. Zimpleman, 66 Tex. 292, 17 S. W. 478. See also Sees. 599, 626a. A custom must be certain, uniform and generally understood, or it is not binding on the principal. Insloe v. Jones, Brightly (Pa.), 76; Pratt v. Bank, 12 Phila. (Pa.) 378; Colland v. Traped, 70 111. App. 228 ; Potts v. Aechtermacht, 93 Pa. St. 138. An offer to prove a general custom among brokers acting for both parties to an exchange of lands to charge commissions to each, held properly refused, for the reason that it appeared that the broker was the agent of one of the parties, and could not therefore legally demand compensation from the other. Dartt v. Somnesym, 86 Minn. 55, 90 N. W. 115. To a custom to the effect that each owner should pay one-half of the commission to the broker for effecting an exchange of prop- erty available as a binding custom, the broker must have acted as a middleman in the mutual interest of both parties, without being the authorized agent of either. Inman v'. Brown, 147 S. W. 652, Tex. Civ. App. . That there was a custom that each party to an exchange pay 2 1 /2% commission on his property would not authorize recovery of broker's commission from party to the trade who knew nothing of custom. Yockum v. Gassett, 200 S. W. 582, Tex. Civ. App. . A real estate agent seeking to recover commissions for nego- tiating a sale, where no contract was made in regard thereto, may prove a custom as to the rate of commissions and the time of payment in the place where the business was done and the land sold. Hansbrough v. Neal, 94 Va. 722, 27 S. E. 593. See Sec. 616. A custom existing among real estate brokers, according to which a commission is divided, where one broker has a buyer and the other a seller, is not sufficient to entitle the broker repre- senting the seller, but not effecting the sale, to recover of a broker who was the procuring cause of the sale one-half of the commissions earned. Hedenberg v. Seeberger, 140 111. App. 618. The court takes judicial notice of a custom that authority to a broker to sell land carries with it the obligation to furnish an PLEADINGS, PRACTICE, ETC. 585 abstract of title. Watkins v. Thomas, 124 S. W. 1063, 141 Mo. App. 263. In a broker's action for commission on the sale of a ranch and personal property, under an agreement that he was to receive "a good commission," it was not error to limit to 5% of the pur- chase price, which was the usual rate prevailing among local agents, and constituted a reasonable compensation. Burger v. Cole, 194 P. 611, Colo. Sup. . Sec. 626a. Custom insufficient to supply lack of employment as broker. The existence of a custom to the effect that when brokers negotiate a lease of real property the lessor pays the commis- sion, can not fasten on a property owner any liability as the employer of the broker, simply because he leases the prop- erty to one introduced by the broker to take it, without any request, express or implied, on the part of the owner. Brady v. American M. & E. Co., 83 N. Y. S. 663, 86 App. Div. 267. See also Sec. 626. Sec. 627. Defendant can not object where evidence shows sale for less than broker claims. In an action for commissions for selling land, where the petition alleges that the tract contained thirty-five acres and that the purchaser agreed to purchase it "for the sum of $200 per acre, and in the aggregate for the sum of $7,000," and that defendant agreed to pay plaintiff five per cent, for pro- curing a purchaser, and the evidence shows that the land dis- posed of contained forty-two acres, and was sold for $7,000, but after the sale the tract was found to contain only thirty- five acres, whereupon defendant made the sale for $6,500, judgment for five per cent, on the $6,500 is warranted, and defendant can not object that the pleading alleged a sale for $200 an acre, while the evidence showed a sale for less than that sum. Hoefling v. Hambleton, 84 Tex. 517, 19 S. W. 689. Sec. 628. Presumptions. Any one dealing with a person whom he knows to be a bro- ker may be presumed to know, from the nature of the broker's 586 AMERICAN LAW EEAL ESTATE AGENCY. business, that he is acting as agent for some third person. Baxter v. Doren, 29 Mo. 434. The fact that a real estate agent had been licensed for a number of years and had a license at the time of a certain trial to recover commissions in another case does not raise a presumption that he had a license at the time of the transaction for which commissions are sought to be recovered. EcJcert v. Collot, 46 111. App. 361. The solvency and ability of the proposed purchaser to per- form the obligations of his contract will be presumed until the contrary is proved. Grosse v. Cooley, 43 Minn. 188, 45 N. "W. 15. (This is contrary to the general doctrine.) Where a ven- dor accepts the purchaser proposed by the broker and enters into a contract with him, the solvency of the purchaser will be presumed, in the absence of proof. Parker v. Estabrook, 68 N. H. 349, 44 A. 484; Springer v. Orr, 82 111. App. 558; McFarland v. Lillard, 2 Ind. App. 160, 28 N. E. 229; Grosse v. Cooley, 43 Minn. 188, 45 N. W. 15. Compare Leuschner v. Patrick (Tex. Civ. App. '07), 103 S. W. 664. Where a contract to procure a purchaser of real estate has been continued, or the time within which a sale was to have been made is waived, without reference to the compensation of the broker, the presumption is that he is entitled to recover the sum originally agreed upon. Ice v. Maxwell) 61 W. Va. 9, 55 S. E. 899. An agency to sell real estate is presumed to continue until a sale is effected, and the burden is on the owner to rebut such presumption. Hartford v. McGillicuddy, 103 Me. 224, 68 A. 860; U. 8. Farm Land Co. v. Darter, 183 P. 696, Cal. App. . See also Sees. 612, 614. In an action for procuring a loan on property, it can not be assumed, in the absence of evidence, that it was not made be- cause of defendant's fault or because they did not have a good title. Rosenthal v. Gunn, 119 N. Y. S. 165. A broker calling attention of purchaser to the property, exhibit- ing it to him, and effecting a sale; held, not required to make proof, tending to exclude all other inferences, since it will be presumed that the sale resulted from his efforts. G. L. & H. J. Gross v. TillingJiast, 86 A. 721, 35 R. I. 298. Presumptively a broker who acted as agent for the owner in PLEADINGS, PBACTICE, ETC. 587 the sale of a farm was entitled to some commission. Grosswiller v. Jansen, 162 N. W. 45, Iowa Sup. . Where broker's contract to sell land at $100 an acre did not authorize a sale on credit, the presumption is that the sale was to be for cash. Sanden & Huss v. Auseribus, 168 N. W. 801, Iowa Sup. . Fact that broker negotiating a loan received commission from borrower does not conclusively establish that he was the agent for borrower. Stephens v. Ahrens, 178 P. 863, Cal. Sup. . In a broker's action for commission, an express contract is al- leged, and the complaint does not show on its face that the con- tract was a parol one, it will be assumed that it was in writing, as required by Comp. Laws 1917, Sec. 5817. Case v. Ralph, 188 P. 640, Utah Sup. . Where plaintiff had received a deed, knowing that her name had been inserted as grantee by a real estate broker after the deed had passed out of the grantee's hands, she could not rest on the presumption created by Gen. Stat. 1913, Sec. 8425, of due execution and delivery, but was required to show that the broker had actual or apparent authority to insert her name. Redding v. Schauble, 177 N. W. 1099, Minn. Sup. . Sec. 629. Assumpsit. An innocent vendor can not be sued in tort for the fraud of his agent in effecting a sale; in such a case the vendee may rescind the contract and reclaim the money paid, and if not repaid may sue the vendor in assumpsit for it, or he may sue the agent for the deceit. Kennedy v. McKay, 43 N. J. L. 288 ; Volker v. Fisk (N. J. Ch. '09), 72 A. 1011; Sterling v. Bank of Sparta, 136 Wis. 369, 117 N. W. 798. Sec. 630. Actions between principals and agents. An action by a broker for his commissions will not lie until it is shown that he has effected or contracted a sale of the property; unsuccessful efforts, however meritorious, afford no ground of action, he loses his labor and effort which he staked upon success; his commissions are based upon the contract of sale. Viaux v. Old South Society, 133 Mass. 1, 10 ; Drury v. Neivman, 99 Mass. 256. See also Sec. 563 588 AMERICAN LAW EEAL ESTATE AGENCY. The recovery in an action by a principal against a broker for fraudulently representing that the worthless property on which the loan was made was good security, is not affected by the question whether he shared the money with or delivered any part of it to the pretended borrower. Rubens v. Herd, 121 Cal. 17, 53 P. 432. One who employed a broker to sell his land can not maintain an action against the broker to recover the balance of the pur- chase money in the hands of the latter until a demand, and an accounting on demand, has been made and refused. Gobin v. Phillips, 12 Ind. App. 629, 40 N. E. 929 ; Shepard v. Brown, 9 Jur. N. S. (Eng.) 195, 78 T. Rep. N. S. 499, 11 W. Eep. 162. Where, in an action against brokers who had effected a sale of plaintiff's land, the parties alleged that defendants received from the purchaser a sum of money for the use of plaintiff and retained it, refusing to pay it over, the petition was not insufficient for failing to allege that defendants were authorized to collect the money. Harrison v. Lakeman, 189 Mo. 581, 88 S. W. 53. Where the property of the principal is sold by the broker on terms not authorized, in an action against the latter for dam- ages caused by such sale, in the absence of an allegation of fraud on the part of the agent, the principal must plead a return of the consideration to the purchaser or an offer to do so. Lunn v. Gutkrie, 115 Iowa, 501, 88 N. W. 1060. Plaintiff agreed in writing to convey lands to the order of the defendant for a price named, and to pay him a brokerage commission for effecting a sale of it; the defendant sold the land for a sum larger than the price named by the plaintiff, and retained the difference himself, and charged the plaintiff his commissions. Held, in an action to recover the difference, that the plaintiff should have been permitted to show that his property had been and was in the hands of the defendant for sale as a broker on commission before and at the time of sign- ing the agreement, as well as what representations were made by the defendant as to his object in taking the agreement, and its purposes so far as he was concerned, as, if they were of the nature which the plaintiff offered to show, they had a ten- dency to show that the agreement was procured by fraud and PLEADINGS, PBACTICE, ETC. 589 misrepresentation on the part of the defendant. Bassett v. Rogers, 165 Mass. 377, 43 N. E. 180. Where separate owners of part of an entire piece of real estate jointly employed a broker to sell the entire tract, an action may be maintained against them jointly on the con- tract. McGill v. Pressly, 62 Ind. 193. See also Sec. 407. Where an intending purchaser of land, who had paid a sum as for first money to the broker employed to sell it, refused to com- plete his contract of purchase and waived the time within which he could complete it, and the broker converted the sum paid, the right of the owner of the land to sue the broker for such sum accrued, though the time for the purchaser's completion of the contract had not expired. M. L. Chambers & Co. v. Herring (Tex. Civ. App. '05), 88 S. W. 371. A broker under a contract to procure a purchaser of real estate, which stipulated that the owner was to receive a specir fied sum out of the price, and that the balance was to be paid to the broker as his commissions, does not make out a case for the recovery of his commissions by showing that he secured a contract with solvent parties to purchase the land, but must show, either that the owner received some part of the balance of the price to which the broker was entitled, or that the par- ties who agreed to purchase were ready, able and willing to purchase, and were prevented from doing so by the default of the owner. Lewis v. Briggs, 81 Ark. 96, 98 S. W. 683. See also Sec. 535. M. & W., each claiming to have been the procuring cause of the sale of defendant's farm, brought separate actions for commissions against defendant in different counties; W. was made a party defendant to M.'s action, and filed an answer, making it a cross-petition against defendant, to which defend- ant answered and M. filed a reply. Held, that W.'s action should be dismissed, and both M. and W. should be required to interplead in the action in which both were. parties. Hop- kins v. Moseley, 31 Ky. L. R. 1308, 105 S. W. 104. Where a real estate agent employed by the vendor in a sale of land holds the receipt given the purchaser by his principal for money paid thereon, and afterward the sale is abandoned by the vendor and the money returned to the agent who de- 590 AMERICAN LAW REAL ESTATE AGENCY. livers up the receipt, he is so far acting as the agent of the purchaser in the receipt of the money that the latter may maintain an action against him to recover it. Phelps v. Brown, 95 Cal. 572, 30 P. 774. See Sec. 25. As a result of the confidential relations existing between the parties, and the good faith required, if an agent, being authorized to sell land for his principal at a fixed price, sells it for a higher price, he must account to his principal for the excess. McDonald v. Fithian, 1 Gilm. (111.) 269; Ziegler v. Hughes, 55 111. 288 ; Meeker v. York, 13 La. Ann. 18 ; Bruce v. Davenport, 36 Barb.' (N. Y.) 349; Merryman v. David, 31 111. 404; Kerfoot v. flyman, 52 111. 512. Plaintiff alleged that he employed H. to find a purchaser for a farm, and that he found a purchaser for a price which included the assignment of a note and mortgage executed by S. ; that on the day the sale was to be completed the purchaser handed H. a roll of money and some papers, which he falsely represented to be the note and mortgage of S. H. falsely and fraudulently represented that it was necessary for him to retain the papers to have the assignments recorded, which plaintiff permitted him to do; that the papers so turned over were not in fact the note and mortgage of S., but two notes executed by G., which were outlawed and worthless; that as soon as plaintiff learned such fact he refused to accept the G. notes and demanded a return of his deed, offering to return the consideration, which was refused; and that the purchaser and H., both of whom were made defendants, had conspired to cheat and defraud plaintiff and had agreed that the G. note should be substituted for the S. note, and that H. should rep- resent that the papers so turned over were the papers agreed to be received, etc., and prayed judgment for damages sustained by reason of defendants' fraudulent acts in the sum of $2,000. Held, that the complaint stated a cause of action ex delicto and not on contract. Francesi v. Hatch, 117 Wis. 242, 93 N. W. 1118. A real estate broker who takes an option for the purchase of property in his own name, but in reality for the benefit of a customer to whom he demands its conveyance, having him- self no interest in the contract beyond a contingent commission PLEADINGS, PRACTICE, ETC. 591 in case the sale is made, can not maintain a suit for specific enforcement of the contract, under Rev. Stat. of Idaho, Sec. 4090, which provides that every action must be prosecuted in the name of the real party in interest, with certain exceptions, none of which covers such case. Lawyer v. Post, 109 Fed. 512, 47 C. C. A. 491. A complaint which alleges that defendant employed plain- tiff to procure within a specified time, "an acceptance of a certain application made by defendant for a loan," and that, within the time, plaintiff procured a third person "to accept said application," sufficiently alleges that defendant was noti- fied of the acceptance, though it does not allege that the de- termination of the third person was communicated to the de- fendant, which must be proved to justify a recovery. Morton v. Petit, 117 N. Y. S. 364. The broker described in a contract for an exchange of lands, which provides that each party shall pay a broker's commission of a stated amount, may sue thereon, though he has not signed it. Button v. Stewart, 135 P. 681, 90 Kan. 602. A broker, to recover commissions under contract entered into in behalf of his principal, must allege and prove either that the owner or purchaser refused to comply, and that the purchaser on refusal was solvent, or that the question of solvency had been waived. Harvil v. Wilson Bros., 74 S. E. 845, 11 Ga. App. 156. A complaint, in an action by a broker for commissions on a sale, which alleges that plaintiff contracted to act as agent, that defendant should pay for the services ten per cent, on the sales made through plaintiff's agency, and that plaintiff made a sale of real estate for $1,000 and was entitled to a ten per cent, com- mission, states a cause of action for a ten per cent, commission on such sale, as against a demurrer. Kupfrain Park Co. v. Run- cie, 96 N. E. 626, 49 Ind. App. 32. That a broker, in making a sale of land on commission, for which he brings action, at the instance of the owners procured a loan on the property, without which the purchaser would not buy, being a mere incident of the sale, may be shown by him without being pleaded in the complaint. American Trust Co. v. Goode, 83 S. E. 550, 167 N. C. 338 592 AMEKICAN LAW REAL ESTATE AGENCY. In a suit for earnest money deposited with broker to bind agreement to buy plaintiff's property, the depositary against whom plaintiff sought forfeiture, after a money judgment, was not a necessary party defendant. Maloney v. Aschaffenburg, 78 S. 761, La. Sup. . Broker employed to sell property and who closes agreement for its sale, becomes under Eev. Civil Code, art. 3016, the agent of both seller and purchaser, and where purchaser deposits earnest money seller can not sue broker to recover it, without making purchaser a party to such suit. Id. Where plaintiff, suing for procuring a lessee, failed to estab- lish any meeting of minds of defendant and lessee in making a valid agreement on terms on which plaintiff testified defendant's agent authorized him to lease, plaintiff failed to make a cause of action. Eckstein v. Youngs Mill Corporation, 172 N. Y. Sup. 354. Sec. 631. Common counts. Under Burns' Eev. Stat. 1901, Sec. 6629a, providing that no contract for the payment of any sum of money for commissions for procuring by one person of a purchaser of real estate of an- other shall be valid unless in writing, signed by the owner of the real estate, no recovery can be had on the common counts for selling real estate under oral employment therefor. Beahler v. Clark, 32 Ind. App. 222, 68 N. E. 613. Where there was a special contract of employment of brokers to sell certain real property, they would not be entitled to recover for their services on the common counts, unless the agreement was executed and completed on their part, or they were prevented from completing the sale within the time limited in the contract for its completion. McOonigal v. Roughley (Del. Super. '06), 63 A. 801. A real estate broker's commissions fully earned under an ex- press contract may be recovered under the common counts, and the contract itself admitted in proof of the particulars of the general right so set up. Eisley v. Beaumont, 71 N. J. L. 372, 59 A. 145; Lawrence v. Rhodes, 188 111. 96, 58 N. E. 910; Tanner v. Clapp, 139 111. App. 353; Edwards Coal Co. v. Rust & 8he(- PLEADINGS, PRACTICE, ETC. 593 lume, 81 S. 567, Ala. Sup. ; Morrison v. Jackson, 85 S. 573, Ala. Sup. . Proof in the first instance that the plaintiffs were licensed real estate brokers is unnecessary to a recovery under the common counts for their commissions. Munson v. Fenno, 87 111. App. 655. Sec. 632. Petition Ultimate facts to be proved must be pleaded. Plaintiff must plead the ultimate facts upon which he relies for a recovery else he can not prove them. Burnett v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775. To entitle him to recover commissions on a particular contract of employment he must plead it. Armstrong v. O'Brien, 83 Tex. 635, 19 S. W. 268. Sec. 632a. Petitions in actions to recover commissions. An action by a real estate broker for commissions will not lie until he has effected or procured a sale. Mueller v. Bell (Tex. Civ. App. '09), 117 S. W. 993. (Compare, when employed to procure at purchaser.) Bradley v. Bower (Neb. Sup. '04), 99 N. W. 490. And a complaint by a real .estate broker for com- missions which alleges that defendant employed him to sell the land and agreed to pay him a certain commission if he found a purchaser, and that he advertised and sold the land to one who paid the purchase money, and received a deed, but that the de- fendant refused to pay the broker his commissions is good against demurrer. Adams v. McLaugTilin, 159 Ind. 23, 64 N. E. 462; Lukin v. Halderson, 24 Ind. App. 645, 57 N". E. 254; Cannon v. Castelman, 24 Ind. App. 188, 55 N. E. Ill; Mullen v. Bower, 22 Ind. App. 294, 53 K E. 790 ; Wright v. Beach, 82 Mich. 469, 46 N. W. 673; Lemon v. De Wolf, 89 Minn. 465, 95 N. W. 316; Downey v. Turner, 28 K Y. App. Div. 491, 51 N. Y. S. 105; YarborougJi v. Creager (Tex. Civ. App. '03), 77 S. W. 645; Brockenbrow v. Stafford (Tex. Civ. App. '03), 76 S. W. 576. A complaint for a commission is sufficient if it states such facts as will inform the defendant of the nature of the action, and be so explicit that a judgment thereon will bar another suit for the same cause. Beineke v. Wuegler, 77 Ind. 468; Ackerman v. Bryan, 33 Neb. 515, 50 N. W. 435. 594 AMEBICAN LAW REAL ESTATE AGENCY. A complaint for a commission by a broker employed to sell lands must allege in direct and positive terms that he rendered the services which resulted in the sale of the property, or that he produced to the principal a party ready, willing and able to purchase said property upon the terms named. Jacobs v. Shenon, 3 Ida. 274, 29 P. 44; Booth v. Moody, 30 Ore. 222, 46 P. 884; Sullivan v. Milliken, 113 Fed. 93, 51 C. C. A. 79; Kupfrain Park Co. v. Runcie, 96 N. E. 626, 49 Ind. App. 32; Olcott v. McClure, 98 K E. 82, 50 Ind. App. 79; Ball v. Davenport, 152 N. W. 69, 170 Iowa, 33; Hazen v. Ransom, 64 S. 682, 134 La. 696; Moore v. Ring, 178 S. W. 124, Mo. Sup. ; Shober v. BlacTcford, 127 P. 329, 46 Mont. 194; Hevia v. Wheeloclc, 148 N. Y. Sup. 165, 162 App. Div. 759 ; Shelton v. Cain, 136 S. \V. 1155, Tex. Civ. App. ; Lilly v. Yeary, 152 S. W. 823; Levy v. Dunken Realty Co., 179 S. W. 699, den. re., 178 S. W. 984, - Tex. Civ. App. ; Fleming v. Maxwell, 117 K E. 210, -- Ind. Sup. ; Woolley v. Batchelder, 169 P. 408, Cal. App. ; Gibbons v. Monongahela Riv. Con. Coal & Coke Co., 68 Pa. Super. Ct. 232; Well v. Harding, 211 S. W. 927, Tex. Civ. App. ; Luckey v. Daniels, 102 S. E. 902, Ga. App. . A petition by real estate brokers to recover commissions, which alleged that defendants requested them to assist in trading land, and agreed to pay plaintiffs a reasonable commission, and that plaintiff performed services which were reasonably worth a stated sum, declares on a quantum meruit. Stanley v. Whitlow, 168 S. W. 840, 181 Mo. App. 461. Where a commission is due a broker on a sale of land, and he foregoes it as consideration on an agreement to allow him to sell other land, on default of his principal on the second agreement, it is not necessary to plead rescission of the second contract to recover the consideration, where he had received nothing there- under, the bringing of the action being sufficient allegation. Shapiro v. Benenson, 167 N. Y. Sup. 1004, 181 App. Div. 19. In an action for commissions by broker employed to find a purchaser for property, complaint which does not allege consum- mation of sale must allege notification of principal that pur- chaser was found. Morris v. Clark, 80 S. 406, Ala. Sup. . Realty brokers to have cause of action for commission on sale of land were required to procure a purchaser ready, able and will- ing to pay promised price provided in broker's contract with PLEADINGS, PRACTICE, ETC. 595 sellers, and then allege fact in direct and precise terms. Mer- haley v. Fisk, 178 P. 945, Cal. Sup. . If the complaint alleges that the defendant refused to con- summate the sale, it must also allege that the customer was able, ready and willing to buy the property on the terms proposed by the principal, or it is fatally defective on demurrer. Sayre v. Wilson, 86 Ala. 151, 5 S. 157; Reardon v. Washburn, 59 111. App. 161 ; Newton v. Donnelly, 9 Ind. App. 359, 36 N. E. 769 ; Brown v. Russell, 221 S. W. 791, Mo. App. . Sec. 632b. When right of action for commissions accrues to a broker. A petition by a broker for commissions for effecting a sale or exchange of property must allege a contract of employment, and a demurrer was sustained by reason of its failing to do so. Toole v. Baer, 91 Ga. 113, 16 S. E. 378; Fenwick v. Watkins, 25 Ky. L. E. 1962, 79 S. W. 214. The petition may properly set forth the agreement between the owner and the purchaser settling the matter arising out of the owner's failure to sell, as showing an insistence by the proposed purchaser on his right to purchase. Wilson v. Clark, 79 S. W. 649, 35 Tex. Civ. App. 92. Where a petition by a broker employed to secure a loan does not allege that the transaction was consummated, it must allege that plain- tiff notified the defendant that a lender was found. McLaughlin v. Whiton, 76 N. Y. S. 1006, 37 Misc. 838; Penter v. StaigU, 1 Wash. 365, 25 P. 469. Where plantiff was to receive $1,500 for furnishing a $25,000 cash purchaser, and furnished one who purchased at $20,000 cash, he can not recover proportionate com- missions on the lesser sum, or what his services are reasonably worth, when he does not declare on a quantum meruit. Steinfeld v. Storm, 63 N. Y. S. 966, 31 Misc. 167. Sec. 632c. In action for division of commission, broker, with- out agreement, could not enforce payment. Where in an exchange of real estate the owners paicf commis- sions to the brokers with whom each dealt, but the brokers dis- puted the division of the amount, and an action between them was brought to determine to whom the commission should ulti- mately go, one broker, in the absence of agreement, could not 596 AMERICAN LAW REAL ESTATE AGENCY. enforce payment to him of the commissions which the owner had made. Clark v. Courtier, 117 K E. 720, 280 111. 590. Sec. 632d. Broker entitled to recover commission for loan when he shows he procured person able and willing to lend. In an action by a broker for commissions for placing a mort- gage, it is sufficient to show a request for the service and a tender to prove complete performance, if he shows that he procured a person who was able and willing to loan. Welch v. Dakin, 68 Pa. Super. Ct. 361. Sec. 632e. Petition failing to show broker procured pur- chaser able, etc., or breach by seller, subject to demurrer. In a suit for commissions on a sale of land, a petition failing to disclose that plaintiff procured a purchaser ready, able and willing to buy, or that defendant interfered with the sale, or de- layed its consummation until after the expiration of contract, is subject to general demurrer, notwithstanding an allegation that immediately after the contract expired defendant sold the prop- erty to one who had been negotiating with plaintiff, in view of Civil Code 1910, Sec. 3587. Price v. Cook, 99 S. E. 47, Ga. App. . Sec. 633. Petition alleging- failure to exchange defective in alleging contract for purchaser, no breach. Where a petition alleged a failure of the defendant to make an exchange of property procured by the plaintiff, it was held defective in alleging a contract to procure a purchaser, with an implied contract to pay a reasonable value of the services; conse- quently there was no breach of contract for which the defendant was liable in damages to the plaintiff, and a demurrer was prop- erly sustained. Mulhall v. Bradley, 63 N. Y. S. 782, 50 App. Div. 179. Sec. 633a. In action between brokers, facts which stated a cause of action. A petition alleging that plaintiff became associated with de- fendant firm as a real estate broker, with an agreement that he PLEADINGS, PKACTICE, ETC. 597 should receive all commissions earned by the firm on property procured by him ; that he listed with such firm property previously listed with him individually upon an agreement for a certain commission; that he brought the owner thereof to the firm's of- fice, and that thereafter defendant firm purchased the land for themselves individually, without the consent of plaintiff, with an agreement that the vendor should pay no commission, and that plaintiff had never waived his right to a commission, states a cause of action. Burns v. Russell Bros., 146 S. W. 707, Tex. Civ. App. . Sec. 634. Petition alleging sales to persons defective for fail- ure to give names, etc. A petition by an agent to sell land to recover damages for refusal of the owner to execute deeds to purchasers, which al- leges a contract by him to various persons who were ready and able to buy the lands on the terms agreed on between him and the defendant, is defective for failure to allege the names of such purchasers, the quantity of land agreed to be sold to each of them and the price. Burnett v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775. Sec. 635. Petition alleging deed of trust defendant refused to release defeating sale, not defective. A petition which alleged that the sale failed because of an unsatisfied deed of trust on the property, which the defendant failed to release or have cancelled, is not defective in failing to allege that the deed was a lien on the property, or that de- fendant refused to consummate the sale. Gerhard v. Peck, 42 Mo. App. 644. Sec. 635a. Complaint not objectionable for falling to show that plaintiff found a purchaser on terms offered by mort- gagee. A complaint alleged that a mortgage foreclosure on land was compromised by the mortgagor conveying his title to the mort- gagee, and in consideration the mortgagee delivered a contract giving the mortgagor the exclusive sale of the mortgaged prop- 598 AMERICAN LAW EEAL ESTATE AGENCY. erty, and that should he succeed in selling at more than the amount due the mortgagee, the excess should he retained as commissions; that the mortgagor assigned to plaintiffs his inter- est in the contract; that plaintiffs sold the property and tendered to the mortgagee the amount due it, and that plaintiffs were at all times willing to perform, and had performed all the condi- tions of the contract, is not subject to the objection that it fails to allege that plaintiffs found a purchaser on the terms offered by the mortgagee, and clearly shows that a sale was made so as to secure the mortgagee all it could claim under the contract. Chatfield v. Continental B. & L. Ass'n, 6 Cal. App. 665, 92 P. 1040. Sec. 636. Petition that broker was to have all over a certain sum, not breached by owner selling at net price. Where a petition alleged that plaintiffs were employed to sell defendant's land, that they were to have all they could obtain for it over a certain sum, and that they offered it to one who pur- chased it of defendant for that sum, they could not recover the reasonable value of their services on an implied contract on the ground that the defendant had accepted the benefit of their ser- vices; and plaintiffs could not recover of defendant for breach of an agreement that he would ask the sum fixed by the brokers of any customer who came to him, where the complaint did not allege such a contract. Ames v. Lamont, 107 Wis. 531, 83 N. W. 780. Sec. 636a. When proper to withdraw case from the jury and enter a judgment of dismissal. Where it appears from the record that counsel for plaintiff, in the statement of the case to the jury, stated in detail all the evi- dence that plaintiff proposed to offer in support of the allegations in his petition, and where it further appears that after the suffi- ciency of his statement was challenged, he was given full and fair opportunity to explain and qualify his statement, and make such additions thereto as, in his opinion, the proofs at his command would establish, and with such explanation and qualification as counsel desire to make, it is still apparent that the facts proposed to be proven would not sustain the essential averment of the peti- PLEADINGS, PRACTICE, ETC. 599 tion, and would not authorize a verdict and judgment for plaintiff, it is the duty of the trial court to sustain a motion to withdraw the case from the jury and enter a judgment dismissing plain- tiff's petition and for costs. Cornell v. Morrison, 87 0. S. 215. Sec. 637. Petition declaring on express contract, on failure to prove may recover on promise to pay certain per cent. Although the plaintiff declared on an express contract to pay him all that he could sell a tract of land for over a certain sum, he may recover on the further allegation of an express promise of defendant to pay him a certain percentage commission, where the broker said he was in the habit of receiving five per cent, commission on sales, to which the defendant did not dissent. Armstrong v. Cleveland, 32 Tex. Civ. App. 482, 74 S. W. 789; Bab v. Hirschbein, 12 N. Y. S. 730. Sec. 637a. Necessary allegations and proof to enable broker to recover commissions for effecting a sale or exchange. Under a written agreement of a land owner to pay a broker a certain sum if he would send or cause to be sent to the land owner a person with whom the latter "may see fit and proper to effect a sale or exchange" of the land, the broker can not re- cover the sum stipulated, without proof of a sale or exchange of the land; nor on a quantum meruit for services in negotiating for such a sale or exchange, without proof that such negotiations were rendered fruitless by the fault of the land owner. Walker v. Terrill, 101 Mass. 257. Sec. 637b. Petition sufficiently setting out contract with firm of real estate brokers to sell land. The petition of C., K. & B. alleging that plaintiffs are a real estate firm, that defendant placed land in the hands of C. & K. to sell, and agreed to pay them a commission for selling it, that they sold it, and that after the contract between defendant and C. & K. was made, C. & K. formed a partnership with B. and he thereby became interested in said contract, sufficiently charges, as against the claim of variance, that defendant contracted with C. & K. as partners. Cook v. Plait, 126 Mo. App. 553, 104 S. W. 1131. Compare Sec. 37. Mechem on Ag., Sec. 221. 600 AMERICAN LAW REAL ESTATE AGENCY. Sec. 638. Petition, plaintiff can not recover on proof of con- tract substituted for that sued on. Plaintiff can not recover on proof of a contract other than that declared on. Daley v. Russ, 86 Cal. 114, 24 P. 867; Kid- man v. Garrison, 122 Iowa, 215, 97 N. W. 1078; Jones v. Pen- dleton, 134 Mich. 460, 96 N". W. 574; Brady v. Barnett, 34 Tex. Civ. App. 433, 78 S. W. 965. Sec. 639. Petition, failing to prove agreed compensation, re- covery of reasonable value may be had. It has been held on a petition to recover an alleged agreed compensation for services as broker, a recovery may be had on proof of the reasonable value of the services, and the variance may be disregarded unless it appears that defendant was misled. Susdorf v. Schmidt, 55 K Y. 319. Compare Sec. 587. Sec. 640. Petition alleging plaintiff acted as broker, secured purchaser, defendant refused deed, good against demur- rer. A complaint alleged that plaintiff acted as broker for defend- ant and secured a purchaser for his land, but that defendant re- fused to make a deed therefor, and that plaintiff was entitled to his commissions. Held, to show a cause of action and to be good on demurrer for the want of facts. Beincke v. Weugler, 77 Ind. 468; Long v. Thompson, 73 Kan. 76, 84 P. 552; Yoder v. Eandol, 16 Okl. 308, 83 P. 537, 3 L. R. A. 576; Rempel v. Hop- kins, 101 Minn. 3, 111 N. W. 385; Ackerman v. Bryan, 33 Neb. 515, 55 N. W. 435; Ross v. Carr (N. M. Sup. '09), 103 P. 307; Harshman v. Mercer, 109 A. 437, Md. Sup. . Sec. 640a. Petition for commissions not demurrable for fail- ing to allege customer was ready, able and willing to purchase. In an action by brokers on a contract whereby they agreed to procure for defendant a customer for her property at a specified price, a complaint alleging a compliance with the contract by plaintiffs was not demurrable for failing to allege that the cus- PLEADINGS, PRACTICE, ETC. 601 tomer was ready, able and willing to. pay for the property. Luns- ford v. Bailey, 142 Ala. 319, 38 S. 362 ; Keinath, Schuster & Hud- son v. Reed, 137 P. 841, 18 N. M. 358. A complaint pleading employment as a broker to sell land for a commission on amount collected by him from purchasers, under agreement that defendant should give at least one week's notice in writing to plaintiff of defendant's intention to cancel any contract procured by him for default by purchasers, and alleging cancellation without notice to him, of contracts pro- cured by him, and claiming as damages the percentage which he would have received on payment by the purchasers of the un- paid instalments, etc., is sufficient as against demurrer, though it fails to allege the financial ability of the purchasers to pay the unpaid instalments. Benequit v. N. Y. & N. J. Real Estate Imp. Co., 133 K Y. Sup. 226, 148 App. Div. 628. Where it is alleged that the seller actually sold the premises to a purchaser with whom the broker was negotiating upon the specified terms, it is not necessary to allege that the proposed purchaser was ready, able and willing to buy. Williams v. At- kinson, 214 S. W. 504, Tex. Civ. App. . Sec. 641. Petition, on contract to pay if sale made by owner, agent may recover without showing performance. Defendant made complainant his agent to sell certain lands, the agency to continue for six months, unless sooner terminated by a sale; defendant reserved the right to sell the land him- self, in which case plaintiff was to receive the same fee as if he had sold it; within seventeen days after making the contract de- fendant sold the land and plaintiff sued for his fees. Held, that the plaintiff need not expressly allege that he had performed the contract on his part. Singleton v. O'Blevis, 125 Ind. 151. Com- pare Wolff v. Demboslcy, 74 N. Y. S. 465, 36 Misc. 643, 66 A. D. 428. See Sec. 948. Sec. 641a. Broker's action for commission for breach of de- fendant's contract therefor did not need to allege fraud. Realty brokers' petition based on violation of defendant's con- tract to pay commission, and not upon fraud of defendant in 602 AMERICAN LAW EEAL ESTATE AGENCY. trying to cover up sale to. third person, did not have to allege fraud. Luzzadder v. McCall 198 S. W. 1144, Mo. App. . Realty broker suing for commissions did not have to plead to whom defendant sold farm through third person, or to plead evi- dence by which it would be established. Id. Sec. 642. Petition to recover money broker refuses to pay need not allege he had authority to collect. Where, in an action against a broker who had effected a sale of plaintiff's land, the petition alleged that defendant received from the purchaser a sum of money for the use of plaintiff and retained it, refusing to pay it over, the petition was not insufficient for failing to allege that defendants were author- ized to collect the money. Harrison v. Lakeman, 189 Mo. 581, 88 S. W. 53. Sec. 642a. Broker held not liable to pay to principal money refunded to purchaser on rejected contract of sale. Plaintiffs authorized defendant to sell land for them, no terms being stated in the agreement, at a certain price within five days, agreeing to pay as commission whatever the land brought over the price fixed. Defendant, found a purchaser who paid down a bonus on condition that if the title was not insured by a certain title insurance company, the bonus was to be re- funded. The title was not insured and defendant refunded the money paid. Plaintiffs then sued defendant, claiming that it had received this money as plaintiffs' agent. Held, that de- fendant was more than a mere agent of plaintiffs, the agree- ment being in the nature of an option for five days, and de- fendant was not liable for such money. Robinson v. Easton, 28 P. 796, 93 Cal. 80. Sec. 642b. Broker receiving money for his principal not liable to repay on suit by party entitled thereto. An agent receiving money for his principal in pursuance of a valid authority without fraud, duress or mistake, is not liable to an action in behalf of the person who is ultimately PLEADINGS, PRACTICE, ETC. 603 entitled to the money, for neglecting to pay the same upon request, and before it was paid over to the principal. Colvin v. Holbrook, 2 N. Y. 126; Costigan v. Newland, 12 Barb. (N. Y.) 456. See also Sec. 384. Sec. 642c. Circumstances under which party entitled to money may sue the agent for its recovery. Where money was paid to an agent on a purchase of land, under circumstances showing bad faith, as where it was the design of the vendor to put upon the purchaser a defective title, the latter is entitled to a return of his money, and he will not be required to pursue the principal, but may sue the agent for a recovery of the money, although he knew at the time of paying the money to the agent that the latter was acting in that capacity; because, if the vendor or his agent knew at the time of the contract that the vendor had no title to the land, it was a palpable fraud and the purchaser was entitled to rescind the contract; payment of the money over to the principal, without notice of the fraud on the part of the agent, or notice not to pay it over, would be a good de- fense, but the agent should prove such payment over, as the law will not presume it. Shepherd v. Underwood, 55 111. 475; Hurford v. Norvall, 145 P. 1060, 39 Okl. 496. Sec. 643. Petition alleging sale by owner ending contract demurrable for failure to allege sale by agent. Defendant listed certain property with plaintiff for sale un- der a contract providing that when the land was sold, or when plaintiff performed its part of the contract defendant was to pay five per cent, commissions and all that the land was sold for over the sum specified; that plaintiff was to advertise the land for sale, and that by selling the land himself or by giv- ing plaintiff thirty days' notice, defendant might terminate the agreement, which, in either event, should be considered as performance on plaintiff's part; the first land company that sold was to get the commissions, and the rest to claim no com- mission; plaintiff alleged that defendant terminated the agree- ment by a notice that he had sold the land. Held, that under such contract it was entitled to a commission only in case it actually made a sale of the land, and that the petition was 604 AMERICAN LAW REAL ESTATE AGENCY. therefore demurrable. Iowa Land Co. v. Schoenewe (Iowa Sup. '05 ), 102 N. W. 817. See also Sec. 15. A complaint in a broker's action alleging that, at the instance of defendant, he, plaintiff, employed a title company, whose ser- vices were worth $3,500, for which plaintiff was responsible, was demurrable for not alleging performance of the services by such company. Hevia v. Wheelock, 148 N. Y. Sup. 165, 162 App. Div. 759. In a broker's action for commissions for procuring buyer for real estate, petition alleging exclusive right by broker to sell property until certain date, and sale by owner subsequently as such to purchaser procured by broker, but fails to allege that pur- chaser was procured by broker within the period during which he had exclusive right to sell, failed to state a cause of action. 'Aukerman v. Brewer, 209 S. W. 261, Tex. Civ. App. . Sec. 644. Petition alleging notice of double employment and defendant consented, not demurrable. Where, in an action on a broker's contract for the sale of real estate, he alleged that after undertaking the sale for de- fendant he reported to him that he had a purchaser who had offered him $5,000 in cash to bring about the purchase, and that defendant assented to plaintiff's acceptance of the joint employment and stated that it would in no wise interfere with their contract, the petition was not demurrable as show- ing a forfeiture of plaintiff's right by his acceptance of an inconsistent employment. Shropshire v. Adams, 40 Tex. Civ. App. 339, 89 S. W. 448. A petition to recover broker's commissions which shows that plaintiff acted for both parties is demurrable, unless it also al- leges that the dual relationship was known and assented to by both. Skirvin v. Gardner, 129 P. 729, 36 Okl. 613. Sec. 645. Petition which alleged bringing parties into touch, etc., insufficient. A petition praying for judgment for $2,000, alleged that de- fendant, being the owner of land, employed plaintiff, agreeing to pay him all over 4,000 that could be realized in a sale of the land; that plaintiff rendered services in looking up and bringing PLEADINGS, PRACTICE, ETC. 605 in touch with defendant on the proposition of a sale of the land, which thereafter was consummated for $6,000 cash. Held, in- sufficient in not alleging what plaintiff was employed hy defendant to do, or that he either effected a sale, or that it resulted from any services under his employment. Fenwick- v. WatTcins, 25 Ky. L. R. 1962, 79 S. W. 214. A complaint in a broker's action which alleged that the prop- erty owner had agreed to pay plaintiff $4,500 for effecting an exchange, which he was prevented from earning by defendant's refusing to convey, stated no cause of action against defendant. Hevia v. Wheelock, 148 N". Y. Sup. 165, 162 App. Div. 759. Sec. 646. Petition alleging services which defendant accept- ed, good by promise to pay. In an action by a real estate agent to recover commissions for selling property, an allegation in the petition that the ser- vices were performed ''for the defendant with his consent," and that he accepted the services and consummated the trade, is not sufficient to raise an implied promise to pay for the ser- vices, and the petition would not be good but for the allegation of an express promise to pay. Viley v. Pettit, 96 Ky. 576, 16 Ky. L. R. 286, 650, 29 S. W. 438, Sec. 647. Petition failing to show written contract, alleged benefits to defendant immaterial. Where a petition, in an action by a real estate agent to recover commissions, fails to show a written contract as re- quired by statute, the fact that the plaintiff alleges that de- fendant received the benefit of his services and therefore can not be relieved of his liability to pay for the same, is imma- terial. Covey v. Henry, 71 Neb. 118, 98 N. W. 434; Smith v. Aultz, 78 Neb. 453, 110 N. W. 1015. Sec. 648. Petition setting forth incomplete copies of unsigned letters as contract demurrable. Where a petition sets forth letters alleged to have been writ- ten to the parties, and to haVe created the necessary written contract between the owner of the land and the broker, but 606 AMERICAN LAW REAL ESTATE AGENCY. does not purport to give full copies, and neither is there any allegation that the letters were signed, the petition is subject to demurrer. David Bradley v. Bower (Neb. Supreme '04), 99 K W. 490. See Sec. 1079. Sec. 649. Petition for commissions on passing of title defec- tive in not showing acts or omissions of defendant. A complaint for broker's commissions under a contract where- by defendant agreed that in consideration of plaintiff's pro- curing a contract to be made with E. for the purchase of cer- tain land of defendant, plaintiff should receive a commission in the event of the closing of title, and only in the event that title should pass, except for default of defendant, is insuffi- cient in alleging only that plaintiff procured a contract for the purchase of land to be executed by defendant and E., and that because of the default of defendant the premises were not con- veyed; it should show that E. was ready to take title to the premises, and at the time provided in the contract, and the particular acts or omissions of defendant which prevented the passing of the title. Davis v. Silverman, 90 N. Y. S. 589, 98 App, Div. 305. In an action for commission on a sale which failed because of refusal of title, the averred defects in the title must be more specifically shown, and plaintiff must allege in what respects the abstract is defective. Cunningham v. Friendly, 140 P. 989, 70 Or. 222, den. re., 139 P. 928, 70 Or. 222. In an action by client against broker, who had acted as such in certain matters, a complaint concerning a real estate deal which does not state that defendant acted for plaintiff in the transaction complained of, states no cause of action. Farrell v. Archibald, 166 N. Y. Sup. 1073. Where a broker's complaint alleged that commissions were to be earned on the passing of title, as agreed, but failed to allege that the title ever passed, or if it failed to pass by reason of any fault on defendant's part, it was demurrable. John Reis Co. v. Zimmerli, 140 N. Y. Sup. 3, 155 App. Div. 260. PLEADINGS, PRACTICE, ETC. 607 Sec. 649a. Petition which failed to state cause of action. A contract between the owner of real estate and a broker provided that on a sale under a certain option, which had been given, a commission should be paid to the broker, of which one- third should be taken from the cash portion of the price, con- templates an actual sale, and a petition showing an agreement to buy and sell, subject to a deposit of "earnest" by the pro- posed buyer, but which fails to allege that a sale has been made, or that the customer is willing to comply with his agreement to buy declares no cause of action. Jardy v. Salmon Brick & Lum- ber Co., 121 La. 457, 46 S. 572. Sec. 649b. Broker's failure to state performance of contract stated no cause of action. In an action to recover broker's commission, plaintiff alleged that he was employed to find a purchaser for the lease, furniture and good will of a hotel for the sum of $16,000, for a commission of 5% on the gross amount of the sale, and that plaintiff intro- duced to defendant, as a prospective purchaser, a party who, m consequence of such introduction to defendant, purchased said property for the sum of $13,500. Held, that the allegations failed to apply facts showing performance of the contract of em- ployment, and stated no cause of action. Ward v. Fritz, 129 N. Y. Sup. 399. Sec. 650. Petition for procuring tenant who purchased, bad for not alleging employment to make sale. A complaint, in an action by a broker for commissions for procuring a purchaser for real estate, alleged that he procured a tenant for defendant for certain premises ; that a lease for a specific number of years was executed, which reserved to the tenant the privilege of purchasing the premises for a speci- fied sum at any time within a specified period; that before the expiration of the period he induced the tenant to consummate the purchase, and that he demanded as his commissions a speci- fied sum, which defendant refused to pay, was bad for failure to allege the employment of the broker to effect a sale. Morris v. Poundt, 99 N. Y. S. 844, 51 Misc. 6 ; Wefel v. Stillman, 151 Ala. 249, 44 S. 203. 608 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 650a. Complaint defective for failure to properly state contract of employment. Complaint alleging that defendant and a third party, through efforts of plaintiff as broker, entered into a written agreement for exchange of certain property, as shown in the annexed copy, in which defendant agreed to pay plaintiff a certain sum as broker, was not an allegation of defendant's employment. Costa v. Schetz, 175 N. Y. Sup. 476. Sec. 651. Petition alleging agreement to pay all over a cer- tain sum as commissions on sale is sufficient. In an action by a real estate broker, the plaintiff alleged that defendant employed him to obtain for defendant a purchaser for a certain piece of property, agreeing with plaintiff that he should be paid for his services all of the purchase price above a certain sum. Held, sufficient in the averment of the employ- ment of plaintiff. Stephens v; Bailey, 149 Ala. 256, 42 S. 740; Weitbroc v. Morris, 163 P. 1119, Colo. Sup. . Sec. 652. Petition for commissions for selling bonds defec- tive, should aver evil repute rendered sales impossible. Plaintiff sued to recover commissions for selling bonds in Germany; the plaintiff alleged that the sale was not completed because the prospectus furnished by defendant contained false statements; that one defendant sent to Germany with plain- tiff by the defendants had such an evil reputation that it pre- vented the sale ; and that defendants recalled plaintiff before he had reasonable opportunity to complete the sales. Held, to state no cause of action for failing to show that performance was impossible because of the bad repute of one of the de- fendants, that being a risk which was assumed by plaintiff. Lenkel v. Mitchell, 106 N. Y. S. 549, 55 Misc. 395. Sec. 653. Petition for commissions out of last cash payment must aver such payment. "Where a broker's contract for commissions provided that the amount sued for was payable out of the last cash payment, such payment constituted a condition precedent to any liability PLEADINGS, PRACTICE, ETC. 609 on defendant's part to pay such amount to plaintiff; and hence an allegation in plaintiff's complaint that the sum sued for "became due" on a given date was not a sufficient allegation that the condition precedent had happened. Nekarda v. Pres- lerger, 107 N. Y. S. 897, 123 App. Div. 418. Sec. 653a. Petition for commission from funds collected must aver same was adequate for the purpose. A promise to pay a broker commission out of a specified fund to be collected by him is enforceable only on allegation and proof that the fund named is adequate for the payment demanded. Columbia Realty Inv. Co. v. Alameda Land Co., 168 P. 64, re. den., Id. 440, Or. Sup. . Sec. 654. Petition not alleging agreement stated was made does not state a cause of action. Plaintiff sued to recover commissions for effecting an ex- change of property; the contract provided that the property conveyed by one of the parties was to be subject to a mort- gage as by agreement to be made between the parties ; there was no allegation that such agreement was ever made, or that there was ever an actual conveyance. Held, that the complaint did not state a cause of action. Kahn v. Verschleiser, 109 N. Y. S. 663, 57 Misc. 381. Sec. 655. Petition asking judgment for excess over net price, on refusal to sell, demurrable. An owner of certain realty listed it for sale with brokers, and agreed that he would sell the property so listed for a given sum net to him; the broker procured a purchaser able, willing and ready to buy at a price in excess of the amount named, but the owner refused to sell. Held, that the agreement did not import an offer on the part of the owner to pay the bro- kers the excess in the amount which the purchaser was willing to pay above the sum named for which the owner was willing to sell it, and a petition asking for judgment for the excess was demurrable. Matheney, Beasly and Koon v. Godin, 130 Ga. 713, 61 S. E. 703. See also Sec. 456. 610 AMERICAN LAW REAL ESTATE AGENCY. Sec. 656. Petition sufficient without alleging sale for the purpose of defrauding plaintiff. The petition of a broker for commissions, alleging the crea- tion of an agency for the sale of land, that defendant author- ized plaintiff to sell it for a certain amount, agreeing to pay him a fair per cent, commission therefor, and that defendant made a special agreement in writing to pay him such commis- sion if plaintiff should sell or negotiate a sale to B., and that a few days thereafter defendant himself sold and conveyed the land to B. for a less consideration, and that said purchaser was procured by plaintiff, under the terms of the contract, states a cause of action, without any allegation that defendant made the sale with evil intent, or for the purpose of defrauding plaintiff. Pierce v. Nichols (Tex. Civ. App. '08), 110 S. W. 206. Sec. 656a. Petition held not defective as alleging a contract in violation of broker's duty. Defendant B., with whom G. had listed land for sale, learn- ing that plaintiff desired to purchase it, requested to be per- mitted to make the sale, and informed plaintiff that he had G. bound to sell the land for $2.50 per acre cheaper than G. would sell it to plaintiff. Plaintiff authorized B. to offer G. the amount he asked for the land, less $72 interest on the land, if it could not be bought for less, B. agreeing not to close the trade with any other parties until plaintiff could buy the property at G. 's price. B. informed plaintiff that G. refused to take less than $2.850 and the $72 interest, and that the offer at that price would be kept open until the next day; but, pending the negotiations, B. and the two other defendants purchased the land for themselves, to plaintiff's damage. Held, that a petition alleging such facts was not defective as alleging a contract between plaintiff and B., which was invalid as a violation of B.'s duty to G. Bass v. T albert (Tex. Civ. App. '08), 112 S. W. 1077. Sec. 656b. Petition against broker for fraud in exchange of land. A petition alleging the relation of principal and broker, and charging the broker with fraud whereby the principal contracted PLEADINGS, PRACTICE, ETC. 611 for exchange of property, to get rid of which he had to expend and obligate himself to the extent of $2,000, stated a good cause of action against the broker. Myers v. Adler, 176 S. W. 538, 188 Mo. App. 647. Sec. 656c. Petitions held demurrable. A count of a petition in an action on a written contract to pay a commission on a sale of land, which contract provided for a sale within 90 days, is demurrable, where it does not aver per- formance within 60 days, or plead matter relieving against such provision. Osborne v. Dannait, 149 N". W. 913, 167 Iowa, 615. Where a memorandum for the exchange of property stated that the broker's commission was to be a certain percentage, but did not contain an agreement to pay it, an allegation that the plaintiff refused to make the exchange or to comply with the terms of the memorandum is not an allegation of non-payment of the commission. John Reis Co. v. Post, 147 N". Y. Sup. 845, 162 App. Div. 463. An allegation in an action for a broker's commission, that the executrix of the vendor of the property had unreasonably rejected a claim against the estate for the amount of the commission does not amount to an allegation that the commission had not been paid. Id. A complaint for a broker's commission which does not allege that the commission had not been paid, is insufficient under Civil Code Proc., Sec. 481, subd. 2, requiring the complaint to contain a plain statement of the facts constituting the cause of action. Id. A complaint by a broker for commissions for procuring a pur- chaser of real estate, which proceeds on the theory that the owner placed the property in the hands of the broker for sale on speci- fied terms, that subsequently the terms were modified, and that the owner wrongfully refused to convey, is not predicated on any theory that the owner deceived or defrauded the broker. Little v. Gorman, 114 P. 321, 39 Utah, 63. In an action against a real estate broker who had the exclusive sale of a piece of real estate to recover one-half the commission which the plaintiff claimed that the defendant had promised to 61& AMERICAN LAW BEAL ESTATE AGENCY. him, if he would reveal the name of a purchaser, the statement of claim is fatally defective, if it merely avers the agreement, and that the plaintiff had revealed the name of the purchaser, but fails to aver that the defendant continued as the agent for the sale of the property until it was actually sold to the person named by plaintiff, or that the sale was in fact the result of any action of the defendant. Neiman v. THiberi, 47 Pa. Super. Ct. 7. Where plaintiff, suing to cancel a note and mortgage pursuant to an agreement that they would be cancelled as compensation for services as a broker, alleged that they had been merged in a new note and mortgage, he was not entitled to the relief asked without pleading and proving facts sufficient to void the new note and mortgage. Shriver v. McCann, 155 S. W. 317, Tex. Civ. App. . Though the complaint, alleging contract that plaintiff should "render services" to defendants, as defendants' brokers and agents, in negotiating and procuring for them a lease, with an option to purchase, contains a general allegation of performance by him of all conditions of the contract, yet its special allegation of per- formance by him of all the conditions of the contract, and that he "rendered certain services' 7 in procuring a lease, which con- tained an option to purchase, renders it insufficient as indicating there was a falling short of due performance. Kidder v. Gavin, 176 N. Y. Sup. 776. A complaint alleging that on a specified date defendant con- tracted to sell mining claims, that plaintiff, at defendant's instance and request negotiated such sale, that on the date specified de- fendant, in consideration of said services, agreed to pay plaintiff specified commissions, and that certain payments were thereafter made, did not show that the services were rendered pursuant to an express contract of employment. Case v. Ralph, 188 P. 640, Utah Sup. . Under Comp. Laws 1917, Sec. 5817, the complaint in a broker's action for commissions for selling land must allege an express contract, either by stating it in full or by stating its legal effect, and it must appear from the contract that the agent was autho- rized to sell and the amount, terms and conditions upon which his commission was to be paid. Id. Where complaint, in an action for commission for making a PLEADINGS, PBACTICE, ETC. 613 loan, alleged plaintiff had performed all conditions precedent, and specified acts of performance by him, and where a corporate company required performance of conditions precedent by plain- tiff and a specified loan company, and where the facts alleged did not show due performance, a general allegation thereof did not show due performance, in view of Comp. Laws 1913, Sec. 7461. Felton v. Nurnberg, 179 N. W. 720, N. D. Sup. . Sec. 656d. Petitions held sufficient. A broker's declaration for commissions alleging that he pro- cured a purchaser, and that the owner refused to consummate the sale, is not insufficient for failure to allege that the owner was advised who the purchaser was. Coppage v. Howard, 96 A. 642, 127 Md. 512. Eealty broker's complaint against another broker held to state cause of action, on the theory that defendant agreed with plain- tiff to try to effect sale, and he submitted offers to plaintiff on consideration plaintiff would pay 2%% commission, but that defendant submitted offer to owner and so secured five per cent. Gerard v. Cross & Brown Co., 165 K Y. Sup. 819, 178 App. Div. 612. Petition of a broker against landowner stating that but for defendant's failure to designate land for sale, and fixing prices and terms, according to his contract, the land would have been sold at a reasonable price yielding certain commissions; held, suf- ficient, without statement as to whom plaintiff could have sold. Dauglierty v. Smith, 192 S. W. 1131, Tex. Civ. App. . Unless the contract of employment stipulates to the contrary, the procurement of a binding, written contract between his em- ployer and his customer is not necessary to complete performance of his duties on the part of the broker, provided the employer is in a position to execute it himself. Eldorado Coal Co. v. Rust & Shelburne, 81 S. 567, Ala. Sup. . Where a petition in broker's action for commission set up a cause of action based upon contract of listment, and no special objections were entered and preserved setting up insufficiency of averment as to plaintiff's contract with defendant, and the aver- ment as actually made authorized the admission of plaintiff's evi- 614 AMERICAN LAW EEAL ESTATE AGENCY. dence establishing the contract of listment sued on, and defend- ant's breach, the petition was sufficient. Pope v. Peeples, 101 S. E. 303, Ga. App. . In an action by a broker engaged to procure a loan to recover commission, the complaint, though not alleging in terms that the broker was ready, willing and able to furnish a loan, held suffi- cient to state a cause of action. Ky. Mtge. Securities Co. v. Hammond, 218 S. W. 714, Ky. Ct. App. . A complaint in an action by a broker to recover compensation need not allege the date on which defendant failed and refused to pay the agreed compensation. Eickmier v. Geddes, 126 N. E. 859, Ind. App. . Sec. 656e. Parties to actions. In an action by brokers for commission for leasing landlord's theater to tenant, because the evidence showed brokers' agent was to get part of the commission, did not require his being made a party plaintiff since he was not a partner. Brady v. Richey & Craig, 202 S. W. 170, Tex. Civ. App. . In an action by purchaser who had entered into a written con- tract with brokers to buy property at a certain price and terms, to recover an advanced payment to brokers, after owner had de- clined to convey or to enter into a contract of sale, it was not necessary to make the owner a party defendant. Harwi v. Mor- ton, 186 P. 740, Kan. Sup. . CHAPTER V. SECTION. 657. Interpleader, when allowed. 658. Interpleader, when not entitled thereto. 659. Demurrer lies to petition against broker for failure of title, when. 660. Demurrer lies to allegation that defendant neglected to collect rents. 661. Demurrer lies to petition where only partial copies of letters constituting contract are given. 662. Demurrer sustained where plain- tiff sought to recover for loss of commissions from opposite party. SECTION. 663. Demurrer to answer liea for not showing modification of writ- ten contract. 664. In Nebraska demurrer lies to petition not showing agent's appointment was in writing. 665. Demurrer held improperly sus- tained in action to recover commissions paid recreant agent. 665a. Demurrer to the evidence and general demurrers. 666. Motion to dismiss held properly denied. 667. Amendment to set up uncon- scionable demand refused. 667a. Waiver by failure to object to amended answer. Sec. 657. Interpleader, when allowed. Where two brokers claim the commissions for the same sale of land an interpleader will be awarded at defendant's in- stance. Dreyer v. Ranch, 3 Daly (N. Y.), 434, 42 How, Pr. 22; Shipman v. Scott, 12 Civ. Proc. R. 18 (N. Y.), 14 Daly, 233. Contra, Brooke v. Smith, 13 Pa. Cir. Ct. R. 557, 2 Pa. Dist. C. R. 767, 33 Weekly Notes Gas. 74. In an action by a real es- tate broker to recover commissions on a sale of property, de- fendant is entitled to an interpleader, where another broker claims commissions for the sale of the same property to the same purchaser on different terms. Shipman v. Scott, 14 Daly 233 (N. Y.). In an action by a broker to recover commissions for selling land, it appeared that the vendor had paid another with knowl- edge of the broker's claim; there was no error in an instruc- tion that the vendor was protected by the law, which author- 615 616 AMERICAN LAW REAL ESTATE AGENCY. ized him to pay the money into court and compel the broker and the other claimant to litigate their rights, since the Code of Civil Procedure, Section 820, provides that a defendant may, where a person not a party to the action makes a demand against him for the same debt or property, apply for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of his debt. Bickart v. Hoffman, 19 N. Y. S. 472. In an action by a broker for commissions on a sale of land, where another broker claiming the same commissions is sub- stituted as defendant for the principal, he having paid the commissions into court, the principal's statement to one of the brokers, in the other's absence, that the absent broker had no authority to sell the land with a builder's loan, is properly excluded. Shipman v. Freeh, 1 N. Y. S. 67. Sec. 658. Interpleader, when not entitled thereto. In an action by a broker against his principal for a commis- sion on an alleged sale of land made by plaintiff for defend- ant, the latter is not entitled to file an answer in the nature of a bill of interpleader by alleging that another broker also claims commissions for making the sale. Hurtsook v. Chriss- man, 114 Mo. App. 558, 90 S. W. 116. A bill of interpleader will not lie at the suit of the seller to require two real estate agents to interplead as to which should have commissions on a sale of land, since, if either of them was entitled to commissions, it is because of some con- tract he had with the seller, and not because of anything that has happened between themselves. Sachsel v. Farrar, 35 111. App. 277. Where plaintiffs sue defendant for a broker's commissions for the sale of certain land made through their agency, the action by a third person against defendant, in another suit, to recover for work, labor and services in the sale of the land, is not a demand against him for the same debt within the Code of Civil Procedure, Section 820, allowing an order of interpleader when competent creditors demand the same debt. Taylor v. Satterth- waite, 22 N. Y. S. 187, 2 Misc. 441. PLEADINGS, PRACTICE, ETC. (J17 Sec. 659. Demurrer lies to petition against broker for fail- ure of title when. In an action against a real estate agent for failure to ex- amine the title of land purchased by him for plaintiff, the plaintiff alleged that the grantor had mortgaged the land and other land, and that the mortgage had been foreclosed and the land in question sold, without saying whether the grantor still retained title to the other lands mortgaged or their value, or that plaintiff applied for an order, in the decree for foreclos- ure, that such other lands be first sold, is demurrable. Sears v. Forbes, 122 Ind. 358, 23 N. E. 773. Sec. 660. Demurrer lies to allegation that defendant neg- lected to collect rents. In an action against an agent to recover for rents collected by him, and for damages for failure to collect rents, an alle- gation that defendant has '" neglected said business, and hence has failed to collect rents with diligence he might have col- lected," is insufficient and demurrable. Peeler v. Lathrop, 48 Fed. 780. Sec. 661. Demurrer lies to petition where only partial cop- ies of letters constituting contract are given. Where a petition sets forth letters alleged to have been writ- ten by the parties, and to have created the necessary written contract between the owner of the land and the broker, but does not purport to give full copies, neither is there any alle- gation that the letters were signed, the petition is subject to demurrer. David Bradley v. Bower (Neb. Sup. '04), 99 N. W. 490. Sec. 662. Demurrer sustained where plaintiff sought to re- cover for loss of commissions from opposite party. A complaint alleged employment by defendant as broker to exchange real estate, the offer of defendant's property under defendant's instructions, and acceptance of such offer, the noti- fication of defendant thereof, and that defendant refused to proceed with the exchange and claimed the reasonable value of such services; a second count repeated the allegations of 618 AMERICAN LAW REAL ESTATE AGENCT. the first, and claimed damages for the loss of commissions to be paid by the owners of the other property on completion of the exchange. Held, that the only contract alleged between defendant and its broker was an employment, that the em- ployer contracted to pay the reasonable value of his services, and a demurrer to the second cause of action, on the ground that it did not state a cause of action, was properly sustained. Mulhall v. Bradley & Currier Co., 63 N. Y. S. 782, 50 A. D. 179. See also Sec. 25. Sec. 663. Demurrer to answer lies for not showing modifica- tion of written contract. A complaint alleged that defendant agreed in writing to pay plaintiff $300 if plaintiff would obtain a loan of $3,000, and that plaintiff had fully performed; the answer alleged that defendant informed plaintiff: that defendant must have the money within ten days, but that when defendant called on the parties who were to make the loan, he could not obtain the money, and that the same thing occurred several times, and that the negotiations extended over much more than ten days. Held, that the answer was demurrable as not showing a modification of the written contract, and in that it did not appear when the limitation began to run and when it terminated. Burr v. Pen field, 105 N. Y. S. 939, 55 Misc. 543. Sec. 664. In Nebraska, demurrer lies to petition not showing agent's appointment was in writing. In an action to recover compensation for services rendered as a real estate broker, a petition which discloses on its face that the contract of agency was not in writing is open to attack by demurrer. Smith v. Aultz, 78 Neb. 453, 110 N. W. 1015. Sec. 665. Demurrer held improperly sustained in action to recover commissions paid recreant agent. In an action by a principal against his agent to recover in part certain commissions alleged to have been erroneously paid, where, on an answer and counterclaim for the balance, the orig- inal action is dismissed, and the case is tried on the counter- claim, and the evidence of plaintiff shows that defendant, PLEADINGS, PRACTICE, ETC. 619 while his agent in the purchase of lands, unknown to him re- ceived a commission from the agent of the vendor, is a sufficient defense to the action on the counterclaim, and a demurrer to such evidence was improperly sustained. Plottner v. Chillian (Okla. Sup. '08), 95 P. 775. Sec. 665a. Demurrer to the evidence and general demurrers. In an action for compensation for attempting to procure a loan, inconsistency in plaintiffs testimony; held, not to autho- rize sustaining a demurrer to the evidence. Little v. Liggett, 121 P. 1125, 86 Kan. 747, 40 L. K. A. (F. S.) 39. Where, in a real estate broker's action for commission, the an- swer set up plaintiffs fraud, and also that the proposed purchaser was not ready, willinsr and able to carry out the agreement, and there was some evidence to sustain the defense of fraud, it was error to sustain demurrer to defendant's evidence, though there was no evidence to support the other defense. Avery v. Howell, 153 P. 532, 96 Kan. 657. In a suit for commission alleged to be due under the terms of a contract for procuring a purchaser of land, a petition failing to show that broker produced a purchaser ready, able and willing to buy on terms proposed by owner, as required by Civ. Code 1910, sec. 3587, was properly dismissed on a general demurrer. Mont- gomery v. Lester, 104 S. E. 28, Ga. App. . Even if a contract for obtaining a tenant contemplated one with financial ability to perform the lease, the complaint for per- forming the service, alleging the securing of a tenant "able," ready and willing to "execute" a lease, can be sustained against demurrer as in fact alleging one ready, willing and "financially" able to "perform" the lease. Harritz v. Steers, 185 N. Y. Sup. 704. In an action by a broker for compensation in negotiating a sale which was never completed, evidence held sufficient to war- rant the court in overruling defendant's demurrer thereto. North Ave. Casino Co. of Balti. City v. Ferguson, 100 A. 628, 130 Md. 376. 620 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 666. Motion to dismiss held properly denied. In an action by a real estate broker, the complaint was made to set forth two causes of action; the first alleged that the con- tract between the parties provided for a commission for leasing and a commission for selling the property in question, and the fact of a lease procured through plaintiff; while the second merely alleged that the tenant thus procured also took and subsequently exercised an option to buy. Held, that as all the allegations might be taken together as stating only one cause of action for two commissions, the motion to dismiss the second cause of ac- tion was properly denied. Downey v. Turner, 51 N. Y. S. 105, 28 App. Div. 491 ; House v. Boyd, 91 S. E. 603, N. C. Sup. . Sec. 666a. Motion which should have been granted. Where a broker, suing for a commission for effecting a sale of defendant's farm containing about 125 acres, proves only a con- tract to find a certain other purchaser for 100 acres thereof, de- fendant's motion for a peremptory instruction should have been granted. Smith v. Robinson, 214 S. W. 771, Ky. Ct. App. . Sec. 667. Amendment to set up unconscionable demand re- fused. In an action to recover $4,000, the residue of $7,600 brokerage for negotiating a loan of $4,000 for four months, the evidence did not support the allegations of the complaint, and the plaintiff was non-suited. Held, that it was immaterial that defendant did not specify for his motion a non-suit, as the complaint could not be corrected except by amendment, and that could not be granted because the demand was unconscionable. Daley v. Russ, 86 Cal. 114, 24 P. 867. Sec. 667a. Waiver by failure to object to amended answer. If a party fails to object to the granting of general leave to amend, he can not subsequently have the amendment stricken out because setting up an unconscionable defense. State v. Rod- ney, 1 Houst. (Del.), 442; Duncan v. Cravens, 55 Ind. 525. CHAPTER VI. SECTION. SECTION. 668. Amendment proper to allow 671. Amendment, error to allow to plead general denial to allege exercise of op- where answer set up stat- tion and completion of ute of frauds. sale. 669. Amendment allowing cor- 672. Amendment to answer held rection of written con- improper and misleading, tract does not cause a de- 673. Amendment of complaint, at parture. trial, in furtherance of 670. Amendment, when error to justice, held proper. refuse. 674. Amendment properly allowed plaintiff to claim return of commissions for fraud. Sec. 668. Amendment, proper to allow to plead general de- nial, where answer set up statute of frauds. Where the answer alleged that the contract of employment was oral, and "barred and invalid by the provisions" of a statute declaring that "contracts for the employment of an agent to sell real estate for commissions are invalid unless in writing subscribed by the party to be charged," and plaintiffs have failed to show a written contract of employment, it was not error to permit defendant to amend his answer by chang- ing the admission of the contract of employment into a denial of the same. Jamison v. Hyde, 141 Cal. 109, 74 P. 695. But see StrunsJci v. Geiger, 101 N. Y. S. 786, 52 Misc. 134. Sec. 699. Sec. 669. Amendment allowing correction of written con- tract does not cause a departure. Where the identity of the transaction on which plaintiffs based their claim to a judgment against the defendant and the form of the action as one sounding in contract were pre- served in the amended petition, and this is the best and most reasonable test by which to determine whether or not an amend- 621 622 AMEKICAN LAW EEAL ESTATE AGENCY. ment of a pleading substantially changes the cause of action so as to be obnoxious to the rule against departure, the amendment of the written contract does not constitute a de- parture. Steivart v. Van Home, 91 Mo. App. 647; Sain v. Booney, 125 Mo. App. 176, 101 S. W. 1127. Sec. 670. Amendment, when error to refuse. Where the court voluntarily permits a broker suing for com- missions to amend his complaint to show an assignment to him of a claim for commissions by A., it is error to refuse to allow him to amend for the purpose of showing an assignment of a portion of the claim from B., although the fact of such as- signment appears in plaintiff's bill of particulars. Schlesinger v. Jud, 70 N. Y. S. 616, 61 App. Div. 453. Sec. 671. Amendment, error to allow to allege exercise of op- tion and completion of sale. "Where, in an action for commissions for a broker's services in the sale of a mine, a non-suit was granted, by reason of the fact that the option to purchase, negotiated by the broker, had not matured when suit was brought, and, pending a mo- tion for a new trial for alleged errors of law occurring at the trial, the purchaser complied with the option and completed the sale, it Avas error to grant a subsequent application for a new trial, in order to permit the broker to allege by amend- ment the completion of the sale and recover for his services. Lawrence v. Peterson, 34 Wash. 1, 74 P. 1011. Sec. 672. Amendment to answer held improper and mislead- ing. On the trial of a cause the defendant obtained leave to amend his answer by alleging "that after making the sales named they (plaintiffs) complained that the prices were too high as named by defendant, and made no effort to sell the same, but neglected the same, to the defendant's damage and in- jury." Held, that the matter involved in the amendment, not being pertinent to the case, was calculated to raise a false issue and distract the attention of the jury from the real ques- tion for their determination. Marshall v. Goble, 32 Neb. 9, 48 N. W. 898. PLEADINGS, PRACTICE, ETC. 623 Sec. 673. Amendment of complaint at trial, in furtherance of justice, held proper. In an action for a division of broker's commissions, it was proper to permit plaintiff to amend his complaint at the trial by inserting an allegation that defendant was the agent of a certain corporation, within certain years covering the trans- action in question, which was the owner of the property sold, under the statute authorizing the court to permit the amend- ment of pleadings in the furtherance of justice. McCleary v. Willis, 35 Wash. 676, 77 P. 1073. In an action by a broker to recover compensation for the sale of a real estate option, the court will permit plaintiff to amend his declaration at the trial by inserting a clause that the contract (which was not reduced to writing) provided that defendant should pay plaintiff for obtaining a purchaser $5,000 in any event. 0. W. Kerr Co. v. Corry, 211 F. 647, 128 C. C. A. 151. Sec. 674. Amendment properly allowed plaintiff to claim re- turn of commissions for fraud. In their original petition plaintiffs alleged that defendants engaged to sell plaintiffs' land at $4,000, for a commission of $125, but if only $3,900 could be obtained the commission should be $100; the land sold for $4,000, but defendants fraudulently represented that only $3,900 was obtained; that plaintiffs paid defendants a commission of $100, and that they fraudulently converted $100 of the price paid for the land, and asked judg- ment for $75; later, plaintiffs were permitted to amend their petition by alleging that defendants through their fraud for- feited all right to commissions, and asked for recovery of com- missions paid and the remainder paid. Held, that the amend- ment was properly allowed. Deter v. Jackson, 76 Kan. 768, 92 P. 546. CHAPTER VII. DEFENSES. Sec. 675. That broker did not use best efforts insufficient. An answer does not state a defense which admits the con- tract, and alleges that the broker did not use his best efforts and act in good faith, but fraudulently induced the defendant to agree to an exchange which he knew was not worth as much as defendant's property, is insufficient, where no direct aver- ment of facts showing fraud is made. Rabb v. Johnson, 28 Ind. App. 665, 63 N. E. 580; Meyer v. Payne, 43 N. Y. S. 133, 13 N. Y. App. Div. 332. Sec. 676. Setting up violation of law as to license insufficient. An answer setting up the violation of a foreign statute re- quiring brokers to take out a license was held insufficient to show that the petition was founded on a criminal offense, or that the broker's contract was void or prohibited by statute, averments to that effect being held mere incidents and deduc- tions from the statute, and not allegations of facts. Angell v. Van ScUnck, 9 N. Y. S. 568, 56 Hun, 247; Gibbons v. Williams, Moniser & Co., 191 111. App. 594; Linton v. Johnson, 94 S. E. 945, W. Va. Sup. . Nor can an agent sued for an ac- counting set up the illegality of transaction from which the money was realized. Mechem on Ag., Sec. 526. Sec. 677. Affirmative defense not pleaded can not be proved. An affirmative defense to be proved must be pleaded. Kelly v. Stone, 94 Iowa, 316, 62 N". W. 842; Scott v. Dillon, 109 N. Y. S. 877, 58 Misc. 522 ; Mauser v. Hurdle, 140 P. 479, 27 Colo. App 567; Langston v. Hoyt, 194 P. 654, Kan. Sup. . Sec. 678. Defense that plaintiff also acted for customer, to be proved, must be pleaded. The defense that plaintiff was employed by both parties and his double employment not disclosed must, to be proved, be 624 PLEADINGS, PRACTICE, ETC. 625 pleaded. Childs v. Ptorney, 17 Mont. 502, 43 P. 714; Reese v. Garth, 36 Mo. App. 641; Harrell v. Bonfils Imp. Co., 45 N. Y. S. 227, 17 A. D. 405; Marks v. O'Donnell, 121 N. Y. S. 214. Compare Sec. 869. Sec. 679. Denying agreement will not admit proof of double employment. Under a denial of an agreement for the payment of a com- mission, the broker's double employment can not be proved. Mc- Fee v. Horan, 40 Minn. 30, 41 N. W. 239; Smith v. Soosan, 35 N. Y. S. 806, 24 Misc. 706; Annabil v. Traverse Land Co. (Minn. Sup. '09), 121 N. W. 233; Hoffhines v. Thorson, 141 P. 253, 92 Kan. 605. The defense of double agency, in an action for a commission, on an exchange of land, must be affirmatively pleaded. North- west Land & Col Co. v. Addington, 168 P. 164, 98 Wash. 576. Sec. 680. Denying allegations, except that plaintiff is a bro- ker, admits proof of double employment. This defense, double employment, may be proved under a de- nial of all the allegations of the complaint except that plaintiff was a broker. Wolf v. Demboskey, 74 N. Y. S. 465, 36 Misc. 643, 66 A. D. 428; Nichols v. Greenstreet, 130 N. Y. Sup. 843, 71 Misc. Rep. 196, judg. aff. 131 N. Y. Sup. 1131, 140 App. div., 940 ; Biggins v. Pottman, 174 P. 119, Cal. App. . Sec. 681. Denying performance of services by broker admit* proof of double employment. Under an answer merely denying the performance of the services by the broker his double employment may be proved. Norman v. Reuther, 54 N. Y. S. 152, 25 Misc. 161. Sec. 682. That services were rendered under an express con- tract inadmissible under general denial. In an action to recover the reasonable value of services for procuring a purchaser of land, a defense that the services were rendered under an express contract as to compensation is in- admissible under the general denial, the action being to recover 626 AMERICAN LAW REAL ESTATE AGENCY. upon a quantum meruit; if defendant relied upon an express contract in respect to plaintiff's corporation, he should have pleaded it. Reishus-Remer Co. v. Benner, 91 Minn. 401, 98 N. W. 186. Compare Sec. 696. Sec. 683. Under general denial can not prove transaction can- celled by consent of all. In an action brought by real estate brokers for commissions, the defendant cannot under a general denial be permitted to show that subsequent to the procurement of the customer and the execution by him of a written agreement to purchase, the entire transaction including the agreement to purchase was cancelled by consent of all parties. Rothschild v. Barrett, 47 Minn. 28, 49 N. W. 393. Sec. 684. Under a general denial may show no commissions chargeable unless excess in price received. In an action by a broker for commissions for selling land under an alleged contract providing for a specified sum as com- missions, defendant may under a plea of general denial show that plaintiff agreed to charge no commissions unless the land was sold for more than a stated price, since that is not affirma- tive matter of defense. Wein v. Gilmer, 81 Tex. 345, 16 S. W. 1058. Sec. 684a. Defense that contract had been rescinded admissi- ble, though not specially pleaded. In an action by a broker for compensation, defense that the contract between the broker and defendant had been rescinded held admissible, though not specially pleaded. Mott v. Minor, (Cal. App. '09), 106 P. 244. Sec. 684b. Defense that broker had not secured second loan admissible under general denial. In an action for commissions for procuring a mortgage loan, a defense that the broker had not procured a second loan agreed upon is admissible under the general denial. Bowes v. Christian, 110 N. E. 1034, 222 Mass. 359. PLEADINGS, PRACTICE, ETC. 627 Sec. 684c. Revocation an affirmative defense. Under Pub. Acts 1915, #90, Sec. 2, requiring answer to con- tain either denials of complainant's allegations or statement of facts relied upon in defense, the revocation of a broker's contract for commission is an affirmative defense, which should be spe- cially set up in defendant principal's answer. Bradley v. Blandin, 100 A 920, 91 Vt. 472. Sec. 685. Under a general denial can not prove another than plaintiff introduced the purchaser. In an action by a real estate broker for commissions, where the answer is a general denial, the proof is restricted to sus- taining or controverting the facts stated in the petition, and defendant cannot show that a third party and not the plaintiff introduced the purchaser to the defendant. St. Felix v. Green, 34 Neb. 800, 52 N. W. 821 ; Reese v. Garth, 36 Mo. App. 641. Sec. 686. Plaintiff is not bound to negative defense of aban- donment of employment. In an action for a broker's commissions, an alleged aban- donment of the broker's employment to sell is matter of defense which the plaintiff is not bound to negative. Moore v. Boehm, 91 N. Y. S. 125, 45 Misc. 622; Jackson v. Brower, 167 P. 6, 22 N. M. 615. Sec. 687. That owner offered to perfect title by suit at law no defense to action by broker for commissions. The fact that the owner offered the prospective purchaser to perfect his title by suit at law is no defense to an action for commissions. Bruce v. Wolfe, .102 Mo. App. 384, 76 S. W. 723. Sec. 687a. Sale by owner at higher price no defense to broker's suit for commissions for producing a buyer. Where plaintiff was employed by an executor to sell land of the estate, and plaintiff procured a purchaser in accordance with the required terms, the fact that the property was sold to another offering a higher price was no defense to plaintiff's 628 AMERICAN LAW EEAL ESTATE AGENCY. right for commissions. Hickman-Coleman Co. v. Leggett (Cal. App. '09), 100 P. 1072. Compare Sees. 15, 454. Sec. 687b. No defense to action for commission for finding a purchaser that latter might have declined to perform. In an action by a broker against the president of a corpora- tion, who employed plaintiff without authority, for furnishing one ready, able and willing to purchase land from the corpora- tion, it was no defense that the contract or agreement which was entered into between the prospective purchaser and the defendant was unilateral, and that the prospective purchaser might have declined to perform, where it was clearly shown that the pros- pective purchaser was anxious to perform, and would have done so except for the refusal of the corporation to approve the con- tract or to convey. Mueller v. Nugent, 218 S. W. 780, Ky. Ct. App. . Sec. 688. When sued for commissions can not set up defect which stated at the time might have been cured. Where one who employed a broker to purchase for him land at a specified price, absolutely refused to complete the transac- tion, he cannot, at the trial of the broker's action for commis- sions, set up a defect in the title which if expressed at the time, might have been obviated. Auten v. Jacobus, 47 N. Y. S. 1119, 21 Misc. 632, affirming 46 N. Y. S. 681, 20 Misc. 669. Sec. 689. Defendant can show another agent made the sale. In an action to recover commissions for a sale of real estate, defendant can show that another authorized agent made the sale. Gain v. Hess, 102 Iowa 140, 71 N. W. 218; Cook v. Whiting, '(Iowa Sup. '09), 122 N. W. 835; Russell v. Poor (Mo. App. '08), 115 S. W. 1. Sec. 689a. What purchaser may show in defense of action to dispossess. Where the agent having authority to sell lands for his prin- cipal makes a contract in writing for a sale of the same in his own name and puts the purchaser in possession thereof, who PLEADINGS, PRACTICE, ETC. 629 makes thereon lasting and valuable improvements, and the purchaser is afterward sued by the principal for the recovery of the land, the purchaser may, with proper allegations in his answer, show the intention of the parties to have been that the principal should be bound by the contract. Butler v. Kaulback, 8 Kan. 668. Compare Taylor v. Guest, 45 How. Pr. (K Y.) 276. Sec. 689b. Not a defense to action for commission that plain- tiff's partner was entitled to half. In an action for a real estate broker's commission, it was no defense that plaintiff had a partner and was entitled to but one- half of the commission, where no attempt was made to make the co-partner a party. Austin v. Norris, 141 S. W. 1179, 101 Ark. 180. Sec. 690. That authority was conditional on defendant's abil- ity to buy another lot. In an action by a real estate agent for commissions for a sale of land, the defense was that the authority to sell was conditioned on defendant's being able to purchase a certain other lot. Held, That it was competent for defendant to show that he made reasonable effort to make such purchase, as such proof showed his good faith. "Wilson v. Klein, 90 Ala. 518, 8 S. 130. Sec. 691. That contract obtained was provisional and no lease was made. Plaintiffs, real estate agents, were to receive certain com- missions for services in securing a lessee for defendant upon agreed terms, and they procured an informal agreement for a lease to be signed by defendant and the applicant for the lease. Held, That to defeat an action by plaintiff for commissions defendant might show by parol that the contract was merely provisional, and did not express all the terms of the lease to be entered into by the parties, and that the lease was never consummated, because no final agreement was ever made be- tween the defendant and the proposed lessee. Buxton v. Seal, 49 Minn. 230, 51 N. W. 918 ; Laws v. Schmidt, 80 Ohio St. 108, 88 N. E. 319. 630 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 691a. Defendant, under a general denial, may show that contract was merely an option. Defendant, under his general denial, in an action for broker's commissions, in which the complaint avers that plaintiffs pro- cured R. to purchase the premises of defendant for an agreed amount, and that said contract was reduced to writing signed by defendant, may show that the contract made by defendant and R. was merely an option. Brown v. Wisner (Wash. Sup. '09), 99 P. 581. Sec. 691 b. Evidence showing contract an option and not a sale. The rule excluding parol evidence to vary a written contract obtains only between the parties thereto, or their successors in interest, so that defendant, in an action for a broker's com- missions for procuring a purchaser by R of land from de- fendant, may show that the contract between R. and defendant, even though in form one of sale, was merely an option and not acted on by R. Brown v. Wisner, 51 Wash. 509, 99 P. 581. Sec. 692. That defendant sold premises before sale by plaintiff inadmissible under a general denial. Where the answer is a general denial, the issue presented by the pleading is the truth of the allegations of the petition ; under such an issue affirmative proof in favor of the defendant cannot be received, and an instruction submitting such proof to the jury is erroneous; hence, evidence offered by defendant that he sold the premises to other parties before the sale by plaintiff is inadmissible. Griffith v. Woolworth, 44 N. W. 1137, 28 Neb. 715. Sec. 692a. Owner rendering himself unable to perform no defense to broker's action for commission. Where a contract employing plaintiff, the agent of defendant, to sell certain lands, provided that plaintiff should be entitled to a commission whether the property was sold by himself or an- other, the fact that defendant renders himself unable to perform the contract is no defense to an action for a commission. Van Patten v. Taber, 130 N. Y. Sup. 1055, 71 Misc. Rep. 610. PLEADINGS, PRACTICE, ETC. 631 Owner cannot defeat an action for a broker's commission by the claim that the contract with the prospective purchaser was unsatisfactory, where his only excuse for not accepting it was that he had already sold to another. Paulsen v. Eourke, 145 P. 711, 26 Colo. App. 488. Sec. 693. Defense of collusion with proposed purchaser and bad faith allowable. In an action for broker's services, an answer alleging that the proposed purchaser was plaintiff's uncle, and that they entered into collusion, whereby the uncle was to pretend to defendant that he was ready and willing to purchase the land and pay for the same in cash, and that defendant under the belief that the proposed purchaser was acting in good faith fixed a day and place for the execution of the deed, when plaintiff and his uncle questioned the description for the pur- pose of delay, and that before the adjourned -day fixed for the execution of the deed, defendant was informed that the pro- posed purchaser would not take the land, until he had had an opportunity of reinspecting it, which he never did, stated a sufficient defense. McAfee v. Bending, 36 Ind. App. 628, 76 N. E. 412. Sec. 693a. Defense of fraudulent representations of agent available against his assignee. It is a good defense for procuring a contract for defendant that the services were rendered without any effort or influence of plaintiff's assignor, and that the agreement relied on by plaintiff was induced by his assignor's fraudulent representa- tions. Sand v. Kenny Mfg. Co., 113 N. Y. S. 972. Sec. 693b. Voluntary payment by the defrauded party no defense to agent sued for the deceit and fraud. The voluntary payment of the balance of the price of the mine bought by his agent, after the purchaser entered into and partly executed the contract to buy the property, is no defense to the agent sued for deceit and fraud in the trans- action. Gt. Western Gold Co. v. Chambers (Cal. Sup. '09), 101 P. 6. 632 AMERICAN LAW REAL ESTATE AGENCY. Sec. 694. After contract accepted by vendor latter can not plead irresponsibility of purchaser to action by broker for fees. Where a broker, under a general contract of employment to sell real estate, obtained a purchaser satisfactory to his principal who made an enforceable contract of sale, without being induced so to do by any representations of the broker as to the pur- chaser's responsibility, and without any bad faith on the broker's part, the latter was entitled to commissions, though, without the principal's fault, the vendee failed to perform the, contract of sale, because of the lack of sufficient financial respon- sibility at the time the contract was executed. Alt v. Doscher, 186 N. Y. 566, 79 N. E. HOO; J. B. WatJcin's Ld. Mfg. Co. v. Thetford (Tex. Civ. App. '06), 96 S. W. 72; Sanderson v. Wells- ford (Tex. Civ. App. '09), 116 S. W. 382. Contra, Dotson v. Milliken, 27 App. (D. C.), 500; Ga. Iron & Coal Co. v. Rogers, Brown & Co., 77 S. E. 213, 12 Ga. App. 429. See also Sees. 726, 842. Sec. 694a. Proofs available to defendant under his denial that customer was able to exchange. In an action by brokers for services in negotiating an exchange of real property, which was not carried out, even if plaintiffs made prima facie proof of title in the customer offered by them, defendant under his denial that the customer was able to ex- change, could prove that he was not able, because he had no title to part of the real property proposed to be exchanged, and that it was incumbered by a party-wall which made it unmarketable. Mutchnick v. Davis, 114 N". Y. S. 997. Sec. 694b. Denial of purchaser's financial ability not an ex- cuse for owner's failure to pay broker's commission. The contention that plaintiff did not procure a purchaser ready, willing and able to pay on the terms agreed upon; held, not to excuse defendant owner from completing the sale, where neither plaintiff nor the purchaser insisted on the terms to which defendant objected. Putnam Inv. Co. v. King, 150 P. 559, 96 Kan. 109. PLEADINGS, PRACTICE, ETC. 633 Sec. 695. Answer averring willingness to sell on terms set forth states no defense. In an action to recover an agent's commissions for finding a purchaser of real estate, where the plaintiff alleged that defendant had agreed to pay a certain sum for the finding of a purchaser at $100 per acre, and that plaintiff found such purchaser, who offered to purchase and pay for the land either in cash or on such terms as the defendant might desire as to payment, an answer denying that defendant ever employed plaintiff, but averring a willingness to sell and convey to the alleged purchaser at $300 per acre, payable in five equal install- ments, bearing interest at ten per cent, per annum until paid, principal and interest to constitute part of the purchase price of the land, constitutes no defense to the action, the allegation in the complaint that the purchaser offered such terms as the defendant might desire as to payment being mere surplusage. Guthrie v. Bright, 26 Ky. L. R. 1021, 82 S. W. 985. Sec. 695a. It is no defense that the broker agreed to divide his commissions with third persons. It is no defense to an action for commissions on a sale of land that the broker agreed with third persons that they should all endeavor to make a sale, and would divide the commissions in the event thereof. Ross v. Carr, (N. M. Sup. '09), 103 P. 307. Compare Sec. 922. Sec. 695b. No defense to action for commission that broker did not give owner the name of purchaser. That a broker did not notify owner of the name of the pros- pective purchaser; held, no defense to an action for a commission. Reich v. Workman, 161 S. W. 180, 110 Ark. 140. Sec. 695c. Broker sued for fraud in effecting sale can not' plead that he received no benefit therefrom. An agent sued for fraudulent misrepresentation in effecting a sale can not defend on the ground that he received no personal benefit, and has paid over the entire purchase price to his prin- cipal. Haener v. McKenzie, 154 N. W. 59, 188 Mich. 27. 634: AMERICAN LAW EEAL ESTATE AGENCY. Sec. 696. Under general denial can prove contract made and non-performance by plaintiff. In an action on an express contract for commissions for pro- curing purchasers of land, the defendant was entitled under a general denial to offer testimony, not only denying the contract as claimed, but also proving the contract which they in fact made, and non-performance thereof by the plaintiff. Tracey Land Co. v. Polk, etc. Co., 131 Iowa, 40, 107 N. W. 1029; Harris v. Moore, 134 Iowa, 704, 112 N. W. 163; Weaver v. Richards, 156 Mich. 320. Compare Sec. 682. Sec. 696a. Evidence that owner promised commission to broker if farm sold without his personal sale admissible without being specially pleaded. In an action for broker's commission, evidence that defendant offered to help advertise the farm, and stated that if any one came plaintiff should take charge of him and he would get his commission just the same, was admissible, though not pleaded, to show scope of agency. Ross v. Major, 163 S. W. 880, 178 Mo. App. 431. Sec. 697. Statute of frauds not available as a defense to ac- tion by broker for commissions. In an action to recover commissions or compensation for a sale of land by a broker, that the contract with the broker was within the statute of frauds is no defense. Stephens v. Bailey, 149 Ala. 256, 42 S. 740; Kepner v. Ford (N. Dak. Sup. '07), 111 1ST. W. 619; Pope v. Caddell, 31 Ky. L. E. 412, 102 S. W. 327; Bailey v. Padgett, 70 S. 637, 195 Ala. 293. Sec. 698. Answer that "sale was not consummated and plain- tiff not entitled to recover" no defense. In an action to recover a commission for a sale of defendant's property, an allegation in the answer that the sale "was not con- summated, by reason of which plaintiffs are not entitled to re- cover of defendants," states no defense, as such failure may have resulted from defendants' fault, they having admitted that plain- tiff furnished them a purchaser. Atterbury v. Hopkins, 122 Mo. App. 172, 99 S. W. 11. PLEADINGS, PRACTICE, ETC. 635 Sec. 698a, Where defendant released party to exchange, he can not plead that time to pay note due on sale has not expired. Where an owner who gave his note to a broker for commission for procuring an exchange of land, upon an agreement that the broker should wait until the owner sold the farm received in ex- change, released the other party from the agreement to exchange, he can not claim that the time for paying the note had not ex- pired. Goldberry v. Thomas, 165 S. W. 1179, 178 Mo. App. 334. Sec. 699. To establish illegality of oral appointment of bro- ker the defense must be specially pleaded. When, in an action for commissions earned by a broker under an oral contract of employment to procure a purchaser of real estate, no illegality in the contract appeared on the face of the complaint or in the evidence to sustain the action, the defense that under the penal code a written authorization to procure a purchaser of real estate is necessary must to be available be spe- cially pleaded. StrunsU v. Geiger, 101 N. Y. S. 786, 52 Misc. 134. Compare Jamison v. Hyde, 141 Gal. 109, 74 P. 695. See. 668. Sec. 699a. On owner's breach, no defense that broker's com- missions depended on consummation of sale. Where a contract for the sale of real property procured by a broker was not consummated, owing to the vendor's default, that it had been orally agreed between the vendor and the broker that no commission should be paid unless the sale was consummated, was no defense to the broker's right to recover compensation. McLane v. Petty, 159 S. W. 891. Sec. 700. Where agent acted for both parties by consent, allegation of bad faith by defendant states no defence. The only fraud charged by the answer, in an action by real estate agents for commissions for trading defendant's land being that plaintiffs were in the employ of the other party to the trade when they were employed by defendants, which fact of dual employment plaintiffs by their reply admitted and justi- 636 AMERICAN LAW BEAL ESTATE AGENCY. fied on the ground that it was with the knowledge and consent of both parties, defendants cannot avail themselves of the defense that plaintiffs acted in bad faith toward both parties by each attempting to testify as to the value of the land of the other. Cook v. Platt, 126 Mo. App. 553, 104 S. W. 1131. Sec. 700a. Broker's refusal to pay part of costs no defense to action for his commissions. "Where a broker bound a purchaser by an enforceable contract, the broker's refusal to fulfill a promise to pay one-half of the costs of the seller's suit to enforce the contract was no defense to the broker's right to commissions. Pinkerton v. Hudson (Ark. Sup. '08), 113 S. W. 35. Sec. 701. Put in issue by general denial, and not necessary to plead sale not consummated. Where, in an action for a real estate broker's commissions to be paid on securing a purchaser, plaintiff relied upon an agreement for a sale made by the owner to a prospective pur- chaser secured by the broker, it was not necessary for the owner to plead that the contract was not consummated by a sale, his general denial putting in issue the fact of a sale, that being necessary to entitle the broker to recover. Wilson v. Ellis, (Tex. Civ. App. '08), 106 S. W. 1152; Arthur v. Porter (Tex. Civ. App. '09), 116 S. W. 127. Sec. 702. That interest terms differed no defense where plain- tiff offered to pay the difference. Where brokers procured a purchaser ready, able and willing to purchase on defendant's terms, it was no defense to an action for commissions that the memorandum of sale did not provide for exactly the same interest terms that defendant de- manded, plaintiffs having offered at the time to pay the differ- ence. Bicker v. Post, 110 N. Y. S. 79, 125 App. Div. 607. Com- pare, Young v. Ruhwedel, 119 Mo. App. 231, 96 S. W. 228. Sec. 703. Averment not objectionable as amounting- to the gen- eral issue. A plea to a declaration by real estate brokers for commissions averring that the brokers did not sell the property to the pur- PLEADINGS, PKAOTIOE, ETC. 637 chasers named for the owners for the amounts named, and that the purchasers did not pay the owners such amount for the property, and that the owners never were indebted as averred, was not bad as amounting only to the general issue, as a plea is not objectionable on that ground, unless it sets up matters of fact merely amounting to a denial of such allegations in the declaration as on general issue would have to be proved to support the case. Seff v. Brotman, 70 A. 106, 108 Md. 278; Bradley v. Blandin, 104 A. 11, Vt. Sup. . Sec. 703a. Improper defenses. (1) Owners having terminated broker's negotiations with a prospective customer, and themselves obtained an option directly from him; held, not entitled to plead the terms of such contract as a defense to the broker's right to commissions. Duncan v. Parker, 142 P. 657, 81 Wash. 340, L. K. A. 1915 A, 804. (2) That a broker employed to sell lands, under a general contract, made a sale at a price lower than that originally de- manded, is no defense in his action to recover commissions under an ordinary agency contract. Larner v. Harvey, 155 N. W. 427, 189 Mich. 249. (3) It is no defense to an action by an agent to recover com- mission for selling real estate, that the principal does not hold title to the land. Sturgeon v. Culver, 124 P. 419, 87 Kan. 404, Ann. Gas. 1913 E, 341. (4) Where defendant had voluntarily, without the plaintiff broker's consent, released the purchaser, refusal of the purchaser to buy the property was not available as a defense. Swift v. Moore, 82 S. E. 914, 15 Ga. App. 254. (5) Where the owners agreed to accept a certain sum in lieu of performance of a contract procured by the defendant brokers; held, that they could not, as against defendants, deny that pay- ment of such sum was equivalent to performance. Davis v. Rose- berry, 148 P. 629, 95 Kan. 411. (6) Fraudulent misrepresentation made by a broker after de- fendant is brought to contract an exchange, will not constitute a defense to a suit for commission for procuring a customer ready, willing and able to trade, but with whom principal refused to 638 AMERICAN LAW HEAL ESTATE AGENCY. carry out a contract for an exchange. Duncan v. Turner, 154 S. W. 816, 171 Mo. App. 661. (7) In an action for commission for a sale of land under a written option to buy at a fixed price, it is no defense that the broker was also paid a commission by the purchaser to whom he assigned his option. Runnison v. Morrison, 76 S. E. 457, 71 W. Va. 254. (8) If, after having made a valid agreement for an exchange of property, one party arbitrarily decides not to fulfil the agree- ment, he can not plead such change of mind against the broker in an action for commission. Neuer v. Jaffe, 165 N". Y. Sup. 113, 179 App. Div. 37. (9) Though broker's contract provided for payment of com- missions only when deeds for exchange of properties were deliv- ered, and excepting, if exchange of deeds was prevented through fault of the principal, and broker had fully performed, want of exchange was no defense to claim for commission. Phelps v. Monroe, 165 N. W. 471, Wis. Sup. . (10) In an action for commissions on a purchase of real es- tate, under a contract by which the plaintiff was to receive one dollar per acre for his services, in consideration of which he was to do all necessary work and secure a good title to the premises, the defendant cannot set up as a defense that the plaintiff was serving two masters, inasmuch as he was trustee for certain bond- holders, who were the virtual owners of the property, if it appears that the plaintiff's connection with the bondholders had ceased at the time of the purchase. Walker v. Brown, 64 Pa. Super. Ct. 159. (11) In an action for commissions for making an oil and gas lease, it was no defense that agent did not procure a written lease where non-performance of lease was due to lessor's own aci. Strickland v. Palmer, 172 P. 932, Okl. Sup. . (12) Where an executor, who was also a real estate broker, proposed to sell property belonging to a devisee on commission, that the owner was represented by an attorney, who dealt with the broker, constituted no defense as against a charge of bad faith on the broker's part in failing to give information as to the value of the land. McCulley v. Rivers, 170 N. W. 24, 200 Mich. 417. PLEADINGS, PRACTICE, ETC. 639 (13) In an action by superintendent of apartment house, in which defendant had an apartment, for commission for his pro- curing a sub-lessee of defendant's apartment, defendant could not defend on the ground that if any commission was earned it be- longed to plaintiffs employer, that being a matter between plain- tiff and his employer, and no concern of defendant. Cadman v. Garcia, 182 N. Y. Sup. 797. Sec. 703b. Defense not properly pleaded. (1) Brokers who procured a purchaser who signed a contract, but refused to execute because of a shortage of three feet in the dimensions specified in the contract of sale, which corresponded with the contract of employment of the brokers, are entitled to their commissions, notwithstanding a claim of defendant that the brokers knew the actual dimensions when employed, where such defense was not pleaded. Solcoldki v. Bliestift, 129 N. Y. Sup. 26. Sec. 703c. Sufficient defenses. (1) In an action by a real estate broker to recover commission, an affidavit of defense is sufficient which avers that the defendant agreed in writing to pay a commission of 5% of the selling price, that the plaintiff furnished him with a buyer for his property, that in addition to the written, there was a verbal agreement made at the same time, that the plaintiff was only to receive hi.? commission in the event of the buyer making final settlement, the same to be paid out of the moneys paid by the buyer to the de- fendant, and that the purchaser, whom plaintiff had produced, had refused to make final settlement, leaving the property still entirely in the ownership of the defendant. Lowenstein v. Mc- Peak, 48 Pa. Super. Ct. 280. (2) The owner of property dealing with a real estate agent in a matter of exchange of properties, may rely upon representations by such agent as to the title to the property to be acquired, and may urge reliance upon such representations, if shown to be false, as a defense to an action for commissions, without showing that he exercised ordinary prudence. Howard v. Anderson, 163 111. App. 256. (3) The fact that the truth as to the broker's false representa- tions as to the property to be received by the landowner, under 640 AMERICAN LAW BEAL ESTATE AGENCY. a contract of exchange, could have been learned on inquiry, did not prevent them from being a defense to the broker's action for compensation, the client being entitled to rely on the broker's statements. Duncan v. Turner, 154 S. W. 816, 171 Mo. App. 661. (4) Under Eev. Civ. Stat. 1911, Art. 1829, the issue of rati- fication of unauthorized terms of a broker's contract of sale held raised, in an action for commission, by the allegation of the answer that defendant refused to accept said terms, and to thai- extent repudiated the contract. Wilson v. Burch, 162 S. W. 1018, Tex. Civ. App. . (5) An answer to action by a broker for commissions for fur- nishing a purchaser, which denied each and every allegation of the petition, in specific terms, and alleged that it was agreed that if plaintiff produced a purchaser who would "purchase" and "pay" for the property at a certain price, then the defendant would pay plaintiff the sum of $5,000, "the difference between the price for which plaintiff was willing to sell and the price plain- tiff represented the purchaser produced by him would pay there- for; held to allege a special contract and not to admit the con- tract of employment alleged in the petition, which was based on the general rule that a broker is entitled to compensation when he furnishes a purchaser ready, willing and able to perform. Murphy v. W. & W. Live Stock Co., 189 P. 857, Wyo. Sup. . (6) In an action for a real estate broker's commission, an an- swer admitting the listing of the property with plaintiff to find a purchaser, and alleging that defendant, before notice by plain- tiff that he had found a purchaser, had sold the property to an- other, was not demurrable as failing to state a defense. Haggart v. King, 190 P. 763, Kan. Sup. . Sec. 703d. Insufficient defenses. (1) In an action for broker's commission, facts held insuffi- cient to establish a defense of double-dealing on plaintiff's part which would bar his right to commissions. Blakely v. Waller & Holz Co., 167 S. W. 1170, 180 Mo. App. 176. (2) In an action for a broker's commission for procuring; a purchaser to negotiate with defendants, without disclosing that he was plaintiff's customer, held insufficient. Handley v. Shaffer, 59 S. 286, 177 Ala. 636. PLEADINGS, PBACTICE, ETC. 641 (3) In realty broker's action for commissions for having pro- cured sale, defendant's answer, facts not showing affirmatively plaintiff procured the sale as made, but negativing it was so pro- cured, alleging specifically facts in connection with charge of double agency which constituted defense; held, not subject to ex- ception on ground it did not negative plaintiff was procuring cause of sale. Buck v. Woodson, 209 S. W. 344, - - Tex. Civ. App. . (4) In land-broker's action on commission notes, in which owners seek to avoid liability and counterclaim for damages upon ground of broker's misrepresentation as to the value of property received in exchange; held, that answer failed to plead that prop- erty received in exchange was not worth as much as property re- ceived in return therefor. Stouffer v. Eymann, 183 P. 210, Cal. App. . (5) An answer, in an action by a broker to recover compensa- tion, admitted that defendant listed real estate with the plaintiff and signed a contract, and that defendant had great confidence in plaintiff, but that defendant, after he had signed the contract, learned that plaintiff had also represented other parties in the transaction and prepared the contract of sale, was not sufficient as a charge of fraud. Eickmeier v. Geddes, 126 1ST. E. 859, Ind. App. . (6) In an action on a promissory note, an answer which al- leged that the note was given to pay plaintiff a commission for a sale of land to defendant, and that after defendant acquired the land he learned that plaintiff was not authorized by the vendor to represent her in making the sale, is insufficient to show want of consideration, since the sale to defendant by the vendor rati- fied plaintiff's acts if they were unauthorized. Trotti v. Neams, 105 S. E. 443, S. C. Sup. . Sec. 703e. Proof necessary to establish defense. (1) Where duality of real estate agency is relied on as a de- fense to an agent's action, defendant must prove not only the duality of the agency, but that same was not known to both par- ties. Bellew v. Ware & Harper, 84 S. E. 597, 10 Ga. App. 149. (2) In an action to recover commissions by one who has been employed as an agent to effect certain resales, a defense whicii 642 AMERICAN LAW BRAL ESTATE AGENCY. consists of a charge that such agent had made certain secret un- lawful profits, in connection with his employment, calculated to defeat a recovery, must be established by a preponderance of the evidence. Windsor v. Kelley Coal Co., 147 111. App. 451. Sec. 703f . What may be proved under a general denial. (1) Under a general denial, in an action for broker's commis- sions, defendant could show, in the absence of express objection, that he and plaintiff were closely related, so as to raise a pre- sumption that plaintiff's services were gratuitous. Carl v. Wol- coii, 156 S. W. 334, Tex. Civ. App. . Sec. 703g. Conflict between answer and answers to special interrogatories. (1) Answers to special interrogatories that defendant agreed to pay plaintiffs half the commissions derived by defendant from the sale of any land to persons sent from plaintiffs to defendant; held, to conflict with answers that the agreement for compensa- tion was merely to make a fair division of the profits. Trice & Ludolph v. Cone, 163 S. W. 587, Tex. Civ. App. . Sec. 703h. Allegation sufficient to permit introduction of tes- timony in absence of demurrer. (1) In an action for commissions by a firm of real estate bro- kers, plea that defendant owners voluntarily consummated sale with purchaser produced by plaintiff firm on terms dissimilar to those specified by owners, though general, was sufficient to permit introduction of testimony, in absence of demurrer raising it. Hoddle v. Malone Real Estate Co., 196 S. W. 347, Tex. Civ. App. . CHAPTER VIII. SECTION. SECTION. 704, 704a. What are not depar "05 to 728c, inclusive. Examples tures. on the question of burden of proof. Sec. 704. What are not departures. Where defendant agreed to pay commissions for sales of lands to customers "procured" by plaintiffs, an instruction that defendants were liable if plaintiffs "furnished" customers, is not a departure from the issues made. Boyd v. Watson, 101 Iowa 214, 70 N. W. 120. A petition alleged that defendant promised to pay plaintiff and another a commission for selling defendant's farm, but refused to pay the same on sale of the farm; an amended petition alleged in the first count that de- fendant had promised to pay plaintiff a commission for selling the farm, but had paid one-half thereof; the second count al- leged that defendant agreed to pay plaintiff and another a certain sum each for selling the farm, but that on sale thereof refused to pay plaintiff his part of the commissions. Held, that the amended petition did not embrace a different cause of action from that pleaded in the original petition, there being nothing in either of the pleadings to indicate that plaintiff intended to charge the existence of a partnership relation between himself and the other agent acting with him in selling the farm. Sain v. Booney, 125 Mo. App. 176, 101 S. W. 1127. Sec. 704a. No variance between allegations and proof. In an action to recover commissions for procuring a loan, there is no variance between an allegation that plaintiff pro- cured a loan for defendant, and evidence that at defendant's request and on his promise to pay a commission, plaintiff pro- cured a loan to be made by a corporation formed by defendant, and a common count that plaintiff performed work for defend- ant, of the price and value of a certain sum, authorized a finding 643 644 AMEKICAN LAW EEAL ESTATE AGENCY. that defendant agreed to pay plaintiff the usual commissions or the reasonable value of his services. Williams v. Clowes, 75 Conn. 155, 52 A. 820. Sec. 705. Burden of proof on defendant that broker's au- thority was revoked. One who has given a broker authority until further notice to sell land has the burden of proving that he revoked the authority before the broker found a purchaser. Bourke v. Van Keuren, 20 Colo. 95, 36 P. 882; Clements v. Stapleton, 136 Iowa, 137, 113 K W. 546; Bradley v. Blandin, 100 A. 920, 91 Vt. 472. Sec. 705a. Burden on defendant to show alleged abandonment of agency by broker. In an action by a broker for compensation for finding a pur- chaser, agency having been proven, the burden was on defendant to show alleged abandonment. McFarland v. Boucher, 134 N. W. 91, 153 Iowa, 716. Sec. 705b. When double commission proved, burden on bro- ker to show he was a mere middleman. When contract of double commission is proven, burden of proof is on broker to show that he was a mere middleman. Jon- son v. Bowen, 164 N. W. 4, 37 N. D. 352. Sec. 706. Burden on plaintiff to show double employment was with defendant's knowledge and consent. The burden of showing that one employing a broker to find a customer to exchange real estate with him had notice that the broker was to receive a commission from the customer is on the broker. Hannan v. Prentis, 124 Mich. 417, 83 N. W. 102; Rob- inson v. Clock., 55 K Y. S. 976, 38 App. Div. 67 ; Stapp v. God- frey, 139 N. W. 158, 158 Iowa, 376; Thomas v. Wychoff, 174 N. W. 26, Iowa Sup. . Compare Redmond v. Henke, 137 Iowa, 228, 114 N. W. 885. PLEADINGS, PBACTICE, ETC. 645 Sec. 706a. Burden on broker to show not only that the seller knew of double agency, but the purchaser as well. Whenever a real estate broker, who is representing the pur- chaser may recover commissions from the seller, the broker must prove, not only that the seller, but the purchaser as well, was aware of his double agency, and that the trade was made with such knowledge. Denison v. Gault, 132 Mo. App. 301, 111 S. W. 844. See also Sec. 559. Sec. 707. Burden of agent's want of authority is on party making allegation. The burden of proving want of authority, where the agent executes a contract in the name of the principal, lies on the party claiming the want of authority. Plumb v. Milk, 19 Barb. (N. Y.), 74. This conflicts with the rule in actions brought by alleged agents to recover commissions. See Sec. 712. Sec. 708. Burden is on agent to establish fairness in transac- tion. The burden of proof is on the agent to establish his fairness in the transaction. Bubidoeux v. Parks, 48 Cal. 215; Brown V. Post, 1 Hun (N. Y.), 303; Neely v. Anderson, 2 Strob. (S. C.) Eq. 262; Condit v. Blackwell, 22 N. J. Eq. 481; Alwood v. Mansfield, 59 111. 496; Eanna v. Haynes, 42 Wash. 284, 84 P. 861; Walker v. Carrington, 74 111. 446; Liemven v. Kline (Iowa Sup. '09), 120 N. W. 312. Contra, Buckingham v. Harris, 10 Colo. 455, 15 P. 817; Pollatschek v. Goodwin, 40 N. Y. 682, 17 Misc. 587. Sec. 709. Burden of proof as to knowledge on part of prin- cipal of dual agency. The burden of proving knowledge on the part of the principal, in some States, rests on the agent. Young v. Trainor, 158 111. 428, 42 N. E. 139; Lynch v. Fallon, 11 R. I. 311; Jansen v. Williams, 36 Neb. 869, 55 N. W. 279; Lena v. Stewart, 95 A. 539, 89 Vt. 286, Ann. Gas. 1917 A, 509. In Georgia, the burden of proving knowledge on the part of the principal rests on the latter, and when dual agency was relied on it was necessary for the defendants to prove not only the fact of such agency, but 646 AMERICAN LAW REAL ESTATE AGENCY. that the same was not known to both parties. Red Cypress Lum- ber Co. v. Perry, 118 Ga. 876, 45 S. E. 674; Hansley v. Monroe, 103 Ga. 279, 29 S. E. 928. The burden of the defense against the owner's possible double liability to each of two brokers with whom he had independently contracted to pay a commission on the procurement of a pur- chaser ready, able and willing to buy realty at a specified price, is on the owner. Alton & Peters v. Merriit, 177 N. W. 770, Minn. Sup. . Sec. 710. Burden on selling broker that principal consented to the broker purchasing the property. If an agent employed to sell property buys it for himself, in an action for compensation the burden of proving that the principal had knowledge of the facts and consented to the sale rests on the agent. Janson v. Williams, 36 Neb. 869, 55 N. W. 279, 20 L. R. A. 207 ; Grant v. Hardy, 33 Wis. 668. Sec. 711. Burden on broker to prove authority of owner's agent to employ him. If the contract is executed by the owner's agent, in order to recover commissions the broker must prove the agent's author- ity to make it. Stinde v. Scharff, 36 Mo. App. 15. Sec. 712. Broker bears the burden of proving his employment. In an action by a broker against his principal for compensa- tion, plaintiff bears the burden of proving by a preponderance of the evidence that he was employed by defendant to find a purchaser and that he found a responsible one. Hammond v. Mitchell, 61 111. App. 144; Harrison v. Prestroski, 97 Iowa, 166, 66 N. W. 93; Chilian v. Butler, 1 E. D. Smith, 150; Schatzberg v. Grosworth, 84 N. Y. S. 259; Barrel v. Veath, 13 N/Y. St. 738; Summa v. Dereskiawicz (Conn. Sup. '09), 74 A. 906; Bal- lentine v. Mercer, 130 Mo. App. 605, 109 S. W. 1037; Rice v. Neuman, 115 N". Y. S. 83; Wltitehouse v. Gerdis, 145 N. W. 338, 95 Neb. 228 ; De Perow v. Groomes, 42 App. D. C. 287 ; Groves v. Oil Belt Trac. Co., 169 111. App. 204; Steinman v. Tully, 155 N. Y. Sup. 215; Wheelan v. Hunt, 133 P. 52, 37 Okl. 523; Barrow v. Newton, 48 Pa. Super. Ct. 382 ; Jackson v. Lacy, 102 A. 584, PLEADINGS, PRACTICE, ETC. 647 92 Conn. 256; Balto. Car Wheel Co. v. Clark, 104 A. 357, Md. Sup. ; Harris v. MilliTcan, 208 S. W. 633, Mo. App. . Compare Sec. 707. Sec. 712a. What broker must show to recover on an implied contract. A real estate broker seeking to recover commissions for pro- curing a purchaser of real estate, under an implied contract, must show that he rendered his services under an honest belief, reasonably indicated by the owner's conduct, that a request had been made of him by the owner to render the services, or under such circumstances, in the absence of a request, as indicated that he expected to be paid therefor, and that the owner, know- ing the circumstances, availed himself of the benefit of the services rendered. Summa v. Dereskiawicz, (Conn. Sup. '09), 74 A. 906. A broker can not recover for his services without showing a contract of employment, express or implied. Welsh & Griffin v. Cullenbaugh, 130 N. W. 792, 150 Iowa, 692; Einhorn v. P. Derby <& Co., 128 1ST. Y. Sup. 659, 132 N. Y. Sup. 327; Kinnon v. PaerschTce, 133 N. Y. Sup. 528, 148 App. Div. 839; Rait v. Carpenter, 138 N. Y. Sup. 460, 78 Misc. Eep. 383 ; Kane v. Sher- man, 130 1ST. W. 222, 21 N. D. 249; Yarborougli v. Richardson, 131 P. 680, 38 Okl. 11 ; Loomis v. Leavell, 134 S. W. 743, Ter. Civ. App. ; Morrison Mill Co. v. American Mercantile Co., 133 P. 1033, 74 Wash. 452. A contract to pay a real estate agent a commission, though unilateral in its inception, becomes a valid and binding contract when tbe agent commences his efforts to sell the property. Han- Ion v. Dunne, 189 111. App. 123. Any mining company knowing an investment company was en- deavoring to sell its mine, acquiescing in its efforts, and accept- ing offer of purchase procured by it, will imply promise on min- ing company's part to pay investment company the reasonable worth of services. Ham & Ham Lead & Zinc Co. v. Catherine Lead Co., 192 S. W. 407, 269 Mo. 654. Plaintiff, who claims commission as broker in effecting a sale of oil and gas properties for defendants, has burden of proving he was defendants' agent in the transaction, and that defendants 648 AMERICAN LAW REAL ESTATE AGENCY. agreed to pay him the amount claimed. Levering v. Paova Oil Co., 243 F. 553, 156 C. C. A. 251. Sec. 712b. Contract of employment of broker by implication. While a broker who voluntarily brings a purchaser to the owner of land is not entitled to a commission, if he endeavors to sell it with the owner's knowledge, there is a sufficient consideration for the owner's promise to pay for the broker's services when a purchaser is procured. Toland v. Williams & Wiley, 129 S. W. 392, Tex. Civ. App. ; Wilson v. Sears, 166 S. W. 38, Tex. Civ. App. ; Peters v. Riley, 81 S. E. 530, 73 W. Ya. 785; Segnitz v. A. OrossenbacJi Co., 149 N. W. 159, 158 Wis. 511; Rigdon v. Moore, -- N". E. 901, 226 111. 382; Roberts v. Howe, 178 111. App. 18; Oudgel v. Cook, 142 S. W. 1014, 146 Ky. 439. Sec. 712c. On finding purchaser broker must advise principal. To entitle a broker to a commission, where no contract of sale is executed, he must show not only that he procured a person ready, able and willing to purchase, but also that his employer was advised and given opportunity to complete a sale. Coppage v. Howard, 96 A. 642, 127 Md. 512. Sec. 712d. Statement by defendant to broker after sale closed that latter was agent, insufficient to establish agency. A statement by defendant, after the closing of a sale of real estate, in which he referred to plaintiff as the agent pro- curing the purchaser, does not establish an express or implied contract between the parties that plaintiff shall share in the commissions received by defendant. Meyer v. Burmeister, 136 N. W. 1126, 29 S. D. 458. Sec. 712e. Broker acting for another in purchasing property acquires no right thereby to commission from vendor. Where a real estate broker, acting for another who desires to purchase real estate, approaches the owner of certain prop- erty, and negotiates for the purchase thereof, no contract will be implied therefrom on the part of such owner to pay the broker for his services. Turek v. Opava, 192 111. App. 270. PLEADINGS, PRACTICE, ETC. 649 Sec. 713. Broker who claims must prove exclusive right of sale. A real estate broker who founds his right of action for com- missions on the owner's agreement to give him the sole and exclusive right of sale of the property, and alleges a breach of such agreement and a sale effected by the owner, must prove that such an agreement was entered into. Wychoff v. Taylor, 13 Daly (N. Y.) 564. See also Sec. 13. Sec. 714. Broker must prove direct employment, ordinary agency of wife for husband insufficient. To sustain an action for commissions, the broker must show direct employment by the principal or a direct authority for him to treat with the agents of the principal, and if the agency of a wife for her husband be relied upon, special authority or ratification must be shown. Harper v. Goodall, 10 Abb. N. Cas. (N. Y.) 161, 62 How. Pr. 288; Harrell v. Vieth, 13 N. Y. St. 738. Sec. 715. Burden of proof on defendant claiming contract signed conditionally. Where plaintiff, in an action to recover commissions for pro- curing a purchaser for real estate, proves the execution of the contract of purchase which defendant claims was signed condi- tionally, the burden of proving such defense is on the defendant. Folinsbee v. Sawyer, 36 N. Y. S. 405, 15 Misc. 293. Sec. 715a. In action for procuring purchaser, burden of showing why contract failed not on broker. In an action for a broker's commission for procuring pur- chaser, burden was not on the broker to show why the contract of sale was not carried out. Levin v. Lehr, 133 N. Y. Sup. 995. Sec. 716. Burden is on plaintiff to show performance of obli- gations assumed. Plaintiff bears the burden of proving that he performed his obligation by affecting a purchase, procuring a responsible pur- chaser or making an enforceable contract of asle in accordance 650 AMERICAN LAW EEAL ESTATE AGENCY. with his instructions. Hammond v. Mitchell, 61 111. App. 144; Leahy v. Hair, 33 111. App. 461 ; Davis v. Gassette, 30 111. App. 41; Pratt v. Hotchkiss, 10 111. App. 603; Peet v. Sherwood, 47 Minn. 347, 50 N. W. 241, 929 ; Young v. Ruhwedel, 119 Mo. App. 231, 96 S. W. 228; Kirvin v. Barney, 57 N. Y. S. 812, 27 Misc. 181; Kirvin v. Barney, 61 N. Y. S. 122, 29 Misc. 614; Cooper v. Lawrence, 110 N. Y. S. 238; Geiger v. Reiser (Colo. Sup. '10), 107 P. 267; Kalkstein v. Jackson, 116 N". Y. S. 302; Abbott v. Lee, 85 A. 526, 86 Conn. 392; West v. Hudson, 137 N. W. 272, 173 Mich. 553; Henry v. Forfcer, 118 P. 205, 61 Or. 276, judg. aff. on re., 122 P. 298, 61 Or. 276; Baldino v. Henneberry, 191 111. App. 368; J. A. Dean & Son v. Goodrich, 140 N. W. 435, 160 Iowa, 98; Duncan v. 'Turner, 154 S. W. 816, 171 Mo. App. 661; Jennings v. Overholt, 172 S. W. 449, 186 Mo. App. 505; Newman v. Dunleavy, 149 P. 970, 51 Mont. 149; Johnson v. Payne Inv. Co., 141 N. W. 1022, 93 Neb. 652; Jenkins v. Ma- honey, 127 N. Y. Sup. 573, 142 App. Div. 653; McCorry v. John C. Wiarda & Co., 134 K Y. Sup. 667, 149 App. Div. 863 ; Cook v. Gordon, 137 P. 782, 68 Or. 557; Hoffman v. Steele, 139 N. W. 733, 152 Wis. 84; Dyar v. Stone, 137 P. 269, 23 Cal. App. 143; Lowenstein v. McPeak, 48 Pa. Super. Ct. 280; Swee v. Neumann, 123 N. Y. Sup. 776, 67 Misc. Eep. 605; Schmidt v. Dunne, 163 N". Y. Sup. 515 ; Woolf v. Hamburger, 201 111. App. 612 ; Young v. Dempsey, 67 Pa. Super. Ct. 534; Brittain v. Rice, 204 S. W. 254, Tex. Civ. App. ; Sanden & Huse v. Ausenhus, 168 N". W. 801, Iowa Sup. ; Thomas v. Wychoff, 174 N. W. 26, Iowa Sup. . Sec. 716a. Broker to find purchaser not required to show that his efforts or representations induced the purchase. One employed to procure a purchaser for a house, and not to negotiate its sale, was not bound to prove that the one procured by him was induced to buy because of his efforts or representa- tions. Matloch v. Jerabek, 164 N. W. 587, Minn. Sup. . Sec. 717. If principal refuses customer broker must prove his ability to perform. If the principal refuses to accept the customer furnished by the broker, in an action to recover commissions the broker must PLEADINGS, PEACTICE, ETC. 651 prove the customer's ability to complete the transaction. Col- burn v. Seymour, 32 Colo. 430, 76 P. 1058; Fay v. Ryan (111. Sup. '09), 88 N. E. 974; Dent v. Powell, 93 Iowa, 711, 61 N. W. 1043; Russell v. Hurd, 113 111. App. 63; Colernan v. Meade, 13 Bush (Ky.), 358; StaeUin v. Kramer, 118 Mo. App. 329, 94 S. W. 785; Clark v. Wilson, 41 Tex. Civ. App. 450, 91 S. W. 627; Allison v. Chapman, 173 P. 389, Cal. App. ; McDonald v. Kimmell, 70 Pa. Super. Ct. 282. Burden on defendant to prove irresponsibility of the purchaser. Cook v. Kronke, 4 Daly (N. Y.), 268. Sec. 718. Purchaser asking specific performance must show validity of broker's authority. Where, in a suit to set aside a contract for the sale of land as a cloud on the title, the purchaser insisted on a decree for specific performance, and the broker a judgment for commis- sions, the burden of showing the validity of the broker's au- thority to make the sale rested on the purchaser and on the broker. Kilpatrick v. Wiley, 197 Mo. 123, 95 S. W. 213. Sec. 719. Burden on broker to prove third person able and willing to advance cash payment to purchaser. The purchaser was unable to buy the land, but a third person agreed to furnish the money necessary to make the cash pay- ment; the sale was not made. Held, That the broker, in order to recover his commissions, must prove, not only that the pur- chaser was ready and willing to buy, but that the third person was ready, able and willing to advance the cash payment. Clark v. Wilson, 41 Tex. Civ. App. 450, 91 S. W. 627. Also that pur- chaser has cash in hand, where that is a prescribed condition. Waiters v. Dancey (S. Dak. Sup. '09), 122 N. W. 430. Sec. 719a. What necessary to prove before contract became binding. Where, in an action by a broker for commissions for the sale of real estate, it was shown that defendant contracted with a third person for an exchange of property, "subject to inspec- tion of land furnished by each party," within fifteen days, otherwise the trade should be considered closed, and that de- fendant refused to carry the contract into effect; the broker, 652 AMERICAN LAW REAL ESTATE AGENCY. in order to recover, must show a failure of defendant to inspect the land of the third person, for the right to recover would not he made out without proof that the contract between the de- fendant and the third person became binding by defendant's failure to inspect. Stotts v. Miller, 128 Iowa, 633, 105 N. W. 127. Sec. 719b. Where mineral rights were reserved, to recover, broker must show purchaser so understood. Where defendant agreed to pay plaintiff certain commissions for the sale of land, with the mineral rights reserved, plaintiff must show that the proposed purchaser would accept the land subject to the reservation, in order to recover commissions. Weaver v. Richards, 120 N. W. 818, 156 Mich. 320. Sec. 720. Burden on broker who claims right to retain com- missions out of purchase money. Where an agent claims the right to retain commissions out of the price received on a sale of land of his principal, the burden of proof is on him to show a legal right to retain his principal's money as commissions. Knott v. Midkoff, 114 La. 234, 34 S. 153. Sec. 721. Defendant alleging plaintiffs were to get wife to join in contract must prove. Where, in an action to recover commissions for a sale of defendant's homestead, their answer alleged that plaintiffs were to procure the wife to join in the contract, and that she refused to do so, the burden was on the defendant to prove such fact. Merlin v. Sipprell, 93 Minn. 271, 101 N. W. 169. Sec. 722. Burden on broker that he had the required written authority to make the sale. In an action by a broker to recover commissions for selling land, plaintiff had the burden of showing that at the time he made the sale, he had the written authority required by statute. Turner v. Lane, 93 N. Y. S. 1083, 47 Misc. 387. Sec. 723. Burden on sub-agent that broker had authority to employ him. Where negotiations for a lease are with a broker of the owner of the premises, the burden is on the sub-agent claiming PLEADINGS, PRACTICE, ETC. 653 commissions to show that the broker had authority to employ him, as a broker authorized to lease premises presumptively is not authorized to employ a sub-agent. Southback v. Ireland, 95 N. Y. S. 621, 100 App. Div. 45. Compare, Madler v. Pogor- ski, 124 Wis. 477, 102 N. W. 892. Sec. 791. Sec. 724. Burden on broker to show payment or not collected through fault of owner. A contract of agency to sell land provided that if the cash payment of any sale was equal to $3.50 per acre the broker should receive his commissions in full, but if less, then the broker should receive only one-half of his commissions, the other half to be paid when the second installment was collected from the purchaser. Held, in an action to recover the balance of com- missions on land sold, that, where half the commissions had been received, the agent must show, either that the second in- stallment had been paid to the owner, or that it had not been collected by reason of the owner's fault. Burnet v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775; Larson v. Burroughs, 116 N. Y. S. 358. Sec. 725. Burden on broker to prove agreement to sell was made and the customer able and willing to perform. A real estate broker employed to procure a purchaser of land for a fixed price, or any other price below that consented to by the owner, has the burden of proving that he produced a person with whom the owner reached an agreement of sale or exchange, and that such person was able and willing to carry out such agreement, in order to recover the commissions provided for. Hunt v. Tuttle, 133 Iowa, 647, 110 N. W. 1026; Blackledge v. Davis, 129 Iowa, 591, 105 K W. 1000; Waiters v. Dancey, (S. D. Sup. '09), 122 N. W. 430; Williams v. Phelps, 171 S. W. 1100, Tex. Civ. App. ; Low Moor Iron Co. v. Jackson, 84 S. E. 100, 117 Va. 76; Joffe v. Lederer, 184 N. Y. Sup. 585. Sec. 725a. What a loan broker must show to recover where loan is not consummated. A loan broker, where the loan is not consummated, must at least show the procurement of a person able and willing to ac-. 654 AMERICAN LAW REAL ESTATE AGENCY. cept it upon the precise terms stipulated by his principal. Strauss v. Eastern Brewing Co., 118 N. Y. S. 806. In broker's action for compensation, plaintiff has burden of showing that defendant principal used information or. services furnished by plaintiff in negotiating a loan after terminating plaintiffs agency. Johnson v. Columbia Mtge. & Trust Co., 201 S. W. 365, Mo. App. . Sec. 726. On accepted contract burden of proof on owner to show irresponsibility of buyer. Where the principal accepts the purchaser found by his broker, without questioning his ability to perform, and the sale fails of consummation by the purchaser's own fault or failure to make good his offer, the burden is on the principal in order to defeat the broker's right to compensation, to show the purchaser's want of ability. Dodson v. Milliken, 27 App. (D. C.) 500; Phinizy v. Bush, 129 Ga. 479, 59 S. E. 259; (In many States owner bound by acceptance.) Compare Sees. 694, 842. Sec. 727. Broker must prove performance within a reasonable time. A broker employed to procure a purchaser of real estate under a contract which does not specify the time for the per- formance of the contract must, in an action for his commissions, prove that he performed it within a reasonable time. Harris v. Moore, 134 Iowa 704, 112 N. W. 1.63 ; Hurst v. Williams, 31 Ky. L. R. 658, 102 S. W. 1176. On acceptance immaterial. Moore v. Boehm, 91 N. Y. S. 125, 45 Misc. 622. Sec. 728. Burden of proof on defendant when he alleges plain- tiff was agent of tenant. Where, in an action by a broker for commissions for procur- ing a tenant for defendant, the defense was that the broker was the agent of the tenant procured, the burden of proof was on defendant to show the existence of such agency. Ballentine v. Mercer, 130 Mo. App. 605, 109 S. W. 1037. PLEADINGS, PBACTICE, ETC. 655 Sec. 728a. Vendee suing to recover money paid vendor's agent on unauthorized contract has burden of proving vendor's ratification. A vendee suing the land owner to recover money paid his agent on an unauthorized contract of sale made by the latter, has the burden of proving ratification by the land owner. Ed- wards v. Davidson (Tex. Civ. App. '04), 79 S. W. 48. Sec. 728b. Burden of proof as to double payment of commis- sions. Where, in an action to recover an alleged double payment of a real estate agent's commissions, defendants claimed that the second payment was for other services, and that the receipt executed therefor had been given to plaintiff's agent, who had knowledge of the previous payment of the commissions, an admission of such prior payment, and the execution of such receipt did not shift the burden of proof to the defendants to show that the second payment was not for services previously paid for. Phelps v. Miller (Tex. Civ. App. '04), 83 S. W. 218. Sec. 728c. Burden on broker to show defect in owner's title which defeated sale. Where a broker procured one who was willing to purchase the land of his principal but for a defect in the title, in an action to recover his commissions, the burden is on the broker to show that such defect existed, no binding contract of purchase having been made. Brackenridge v. Claridge, 91 Tex. 527, 44 S. W. 819. Sec. 728d. Burden of proof, and upon whom it falls. (1) A broker engaged to obtain a purchaser, who claims a commission, though the sale was prevented because of an alleged defect of title, has the burden of proving that his principal failed to discharge an obligation resting upon him with reference to making the title good. Reeder v. Epps, 166 S. W. 747, 112 Ark. 506. (2) Where, in a broker's action for commission, plaintiff relies, under authority of Civil Code, Sec. 1559, upon a contract made 656 AMERICAN LAW BEAL ESTATE AGENCY. for his benefit, and not upon the employment, and where defend- ant pleads employment as a basis of the defense, resting on the confidential relations, the burden is on defendant to prove such employment. Konda v. Fay, 136 P. 514, 22 Cal. App. 722. (3) In a suit for commissions on sale of real estate, burden is on plaintiff to show a definite offer to sell by defendant and ac- ceptance by the prospective purchaser, and that defendant, with- out just reasons, refused to convey. Hauch v. Bonnabel, 64 S. 795, 134 La. 847. (4) Where an owner, after giving to a broker an exclusive agency for sixty days to sell real estate, at a specified sum, for the usual commission, sold the property before the expiration of the sixty days, for a less sum, to one not procured by the broker, the commission contracted for was prima facie the dam- ages to the broker, treating the contract as performed, and the owner had the burden of showing, to reduce the damages, that in all reasonable probability the broker could not have procured a purchaser within the time specified for the specified price. Norman v. Vanderiberg, 138 S. W. 47, 157 Mo. App. 488. (5) Where a sale negotiated by brokers failed because of the outstanding liens on the property, the burden was on the own- ers, in a suit for commissions, to show that the brokers had knowledge of the situation when they procured a purchaser. Willson v. Crawford, 130 S. W. 227, 61 Tex. Civ. App. 580. (6) A broker, to recover the reasonable value of services in procuring a customer to whom the owner sold at a price less than that fixed in the contract of employment, must show the reason- able value of the services. Martin v. Jeffries, 172 S. W. 148, Tex. Civ. App. . (7) Owner employing a broker to procure a purchaser has the burden of proving the fraud of the broker, to defeat an action by the broker on a note for his commissions. Martineau v. Han- son, 155 P. 432, 47 Utah, 549. (8) The rule requiring a broker suing for a commission for procuring a purchaser to show that the purchaser was ready, able and willing to buy on terms satisfactory to the owner, applies only where owner has refused to consummate the sale, and not where the property has been actually sold on satisfactory terms. Weisels-Oerhart Real Estate Co. v. Epstein, 137 S. W. 326, 157 Mo. App. 101. PLEADINGS, PBACTICE, ETC. 657 (9) Party seeking to defeat broker's right to commission on contract of exchange of lands incumbered by a mortgage, on the ground that the contract was invalid, was bound to show that purchase was made by the broker with this permanent capital or deposits. Genatt v. Robinson, 165 N. Y. Sup. 464. (10) In a broker's suit for commissions on exchange of land, in which intervenors claimed a portion of commissions, and there were no material issues between plaintiff and defendant, inter- venors had burden of proof to establish their allegations, that there was a universal custom, where more than two brokers are interested, to pool commissions, and that they had such agree- ment with plaintiff. Knight Realty Co. v. Williams, 193 S. W. 168, Tex. Civ. App. . (11) In an action for damages for breach of contract in selling land, where plaintiffs relied on ratification by defendant of agent's contract to sell, burden was on them to prove ratification. Crumpacker v. Jeffrey, 115 N. E. 62, Ind. App. . (12) Plaintiff has burden of proving consideration for de- fendant's written agreement to pay a certain sum for services connected with the sale of certain property, payment to be made upon completion of sale, although defendant had made partial payment, and had sold property, though not through plaintiff's efforts. Dennis v. Vinton, 165 N. W. 603, Mich. Sup. . (13) In broker's action for commission, burden of proving terms of brokerage contract was upon broker, principal not being required to prove any part thereof. Jackson v. Kohler, 124 N. E. 650, 111. Sup. . (14) Where a corporation sued a real estate agent which it had engaged to procure a factory site, on the ground that, despite the fiduciary relations, he made a secret profit, the burden of es- tablishing the fiduciary relations is on the corporation. H. J. Jaeger Co. v. Hannan, 108 A. 1, N. J. Eq. . (15) The burden of proof is upon a broker, suing to recover commissions, to prove that his services were rendered under em- ployment by the principal, or that the latter accepted his agency and his acts, under circumstances showing that he knew the ser- vices were being rendered on his account, and while the agent was relying on the principal's obligation to pay for them. Suter v. Farmers' Fertilizer Co., 126 N. E. 304, 100 Ohio, 403. CHAPTER IX. EVIDENCE ADMISSIBLE. Sec. 729. Oral agreement, where correspondence does not cover compensation. Where the correspondence by which plaintiffs were employed to sell land does not cover the question of compensation, a former oral agreement as to compensation to be charged may be shown, but where the contract by correspondence refers to a sale of lots at specified prices and terms, evidence of a former oral agreement that the sale should be made subject to' defend- ant's approval, and that the deed should contain certain condi- tions, is inadmissible. Sayre v. Wilson, 86 Ala. 151, 5 S. 157. Sec. 729a. Contract of employment admissible to prove value of services rendered by broker. Where a broker introduces a prospective purchaser to the seller, and the latter undertakes to conduct the negotiations and finally sells the property for less than the terms named in the contract of employment, the original contract is admissible, in an action by the broker, as a basis for the ascertainment of reasonable compensation. Smith v. Sharp (Ala. Sup. '09), 50 S. 381. Sec. 730. Writing reciting payment of consideration as tend- ing to prove broker's services. A written agreement entered into by plaintiffs' customer for the purchase of property and reciting the payment of part of the stipulated price to plaintiffs, is admissible as tending to show that plaintiffs rendered services in effecting a sale of the property. Rothschild v. Burritt, 47 Minn. 28, 49 N. W. 393; Tebo v. Mitchell, 5 Pennewill (Del.), 356, 63 A. 327; Carl v. Wolcott, 156 S. W. 334, Tex. Civ. App. . 658 PLEADINGS, PRACTICE, ETC. 659 Sec. 730a. Written opinion of customer's attorney admissible to show defects in title in broker's suit for commissions. For the purpose of showing what specifications of supposed infirmities in the title were directed to the principal's attention, the written opinion of the customer's attorney as to the title is admissible in a broker's action for commissions. Wood & Tatum v. Easier, 173 P. 1109, Gal. App. . Sec. 731. Deed of principal to show ratification of broker's contract. A deed executed by the principal to the purchaser after the commencement of the suit, is admissible to show the principal's ratification of the broker's contract. Gelott v. Ridge, 117 Mo. 553, 23 S. W. 882. Sec. 732. Written contract of sale to show sale was made. The written contract of sale executed by plaintiffs as de- fendant's agents is admissible to show that the sale was made, although the agents had no written authority to make it, and it was afterwards repudiated by the defendant. Monroe v. Snow, 131 HI. 126, 23 N. E. 401 : Johnson v. Buchanan (Tex. Civ. App. '09), 116 S. W. 875; Grosse v. Cooleu, 43 Minn. 188, 45 N. W. 15 ; Cutter v. Pearsoll 146 Cal. 690, 81 P. 25 ; Snyder v. Fidler, 125 Towa, 378, 101 N. W. 150. Sec. 733. Newspaper advertisement to show efforts of brokers to sell the property. A newspaper advertisement published by plaintiffs is admis- sible as showing what they did in performance of their duty under the contract to sell the property. Decker v. Widdicomb, 137 Mich. 331, 100 N. W. 573. Sec. 733a. Broker may testify he advertised lands in news- paper. A real estate broker suing for commissions may testify that he advertised the land in a certain newspaper, no effort beins: made to prove in this manner the terms or contents of the ad- vertisement. Tarborough v. Creager (Tex. Civ. App. '03), 77 S. W. 645. 660 AMERICAN LAW BEAL ESTATE AGENCY. Sec. 734. Memoranda made by the parties. A memorandum signed by the parties to proposed sale is admissible in evidence. Folinsbee v. Sawyer, 28 N. Y. S. 698, 8 Misc. 370. Sec. 734a. Contract and release admissible in evidence. In an action for broker 's commissions for procuring a tenant for premises, wherein defendant claimed plaintiff agreed to forego the payment of his commissions until payment of the rent by the tenant, the complaint, in an action by defendant against the tenant for specific performance of the contract pro- cured by plaintiff, and the release subsequently executed to the tenant are admissible, not only as an admission of the con- tract, but to show that there was an agreement by plaintiff to postpone payment of commissions; defendant had voluntarily put it out of his power to collect such rent. Benedict v. Pincus, 119 N. Y. S. 266. Sec. 735. Conversations, when pertinent to the issues. In an action for commissions on a sale of real estate, evidence of negotiations between plaintiff and the customer afterward communicated to defendant is admissible. Luhn v. Fortran (Tex. Civ. App. '09), 115 S. W. 667; Huff v. Cole, 127 Mich. 351, 86 N. W. 835; Kurinsky v. Lynch (Mass. '09), 87 N. E. 70; Benedict v. Dakin (111. Sup. '09), 90 N. E. 712; Leonard v. Roberts, 20 Colo. 88, 36 P. 880 ; White v. Collins, 90 Minn. 165, 95 N. W. 765 ; Woolley v. Lowenstein, 31 N. Y. S. 570, 83 Hun, 155 ; Brumfield v. Potter, etc., Mfg. Co., 23 N. Y. S. 1025, * M. 194; Richardson v. Babcock, 119 Wis. 141, 96 N. W. 554; 'McDonald v. Smith, 99 Minn., 42, 108 N. W. 291; Fortran v. Stevens, 113 S. W. 312 (Tex. Civ. App. '08) ; Smith v. Lyons Salt Co., 177 S. W. 1057, Mo. App. ; Bounds v. Victoria Hotel Co., 184 111. App. 500; Jackson v. Kohler, 124 N. E. 650, 111. Sup. ; Fisher v. Skidmore Land Co., 179 N. W. 152, Iowa Sup. . Sec. 736. Conversations after the sale are not admissible. Conversations between a broker and the purchaser after the sale are inadmissible. McDonald v. Ortman, 98 Mich. 40, 56 PLEADINGS, PRACTICE, ETC. 661 N. W. 1055; also, betwen plaintiff and proposed purchaser, in the absence of defendant. Rutherford v. Selover, 87 Minn. 495, 92 N. W. 413. Likewise, between buyer and seller before and after the execution of the contract of sale, it affects the broker. Veazie v. Parker, 72 Me. 443. Sec. 737. Letter of broker to purchaser's agent to prove efforts to make a sale. In an action by a broker to recover from the seller of real estate, commission for procuring a purchaser, the question was whether a letter written by the broker to the purchaser's agent Was admissible to prove his efforts to make a sale; and com- petent as part of the res gestae to show what the broker did un- der his employment towards procuring a purchaser, and was not rendered incompetent because it incidentally corroborated the testimony of the broker as to the date of the interview between him and the defendant. Carroll v. Pettit, 22 N. Y. S. 260, 67 Hun, 418; Stiewel v. Lally, 89 Ark. 195, 115 S. W. 1134; Ross v. Mayer, 163 S. W. 880, 178 Mo. App. 431. Bee. 737a. Evidence admissible showing communication to another agent of plaintiff's employment by the seller. In an action for commissions claimed to have been earned by purchasing land for defendant, where defendant claimed that plaintiff received a commission from the seller of the tract in violation of his relations as agent, which commission plaintiff claimed was received for defendant's benefit and by his au- thority, evidence was admissible of the employment and the extent of the authority of another employed by defendant to assist the plaintiff in securing the option, who, by plaintiff's direction, communicated to defendant the proposed terms for the purchase of the tract in question, but the compensation he was to receive from defendant was immaterial. Mahon v. Ran- Tcin (Ore. Sup. '09), 102 P. 608; Long-Lewis Hardware Co. v. Swing, 62 S. 341, 8 Ala. App. 657. Sec. 738. Correspondence to establish agency. On the issue as to whether a loan broker was the agent of de- fendant in negotiating a loan for him, or the agent of the plain- 662 AMERICAN LAW REAL ESTATE AGENCY. tiff company which made the loan, correspondence between the broker and the plaintiff's manager relative to defendant's loan and a requested extension thereof, and concerning other loans made by plaintiff through the broker, is admissible in evidence, and the question is for the jury. Jesson v. Texas Land & Loan Co., 3 Tex. Civ. App. 25, 21 S. W. 624; Wefel v. Stillman (151 Ala. 249), 44 S. 203; Wallick v. Lynch (Iowa, '06), 106 N. W. 617; Veale v. Greene, 105 Mo. App. 182, 79 S. W. 731; McCombs v. Moss, 181 S. W. 907, 121 Ark. 533 ; Sills v. Burge, 124 S. W. 605, 141 Mo. App. 148; Coffman v. Dyas Realty Co., 159 S. W. 842, 176 Mo. App. 692 ; Vritain v. Rice, 204 S. W. 254, Tex. Civ. App. . Sec. 739. Evidence to show plaintiff's employment by defend- ant's agent. In an action for services rendered by plaintiff in purchasing property for defendant, testimony that defendant's agent solic- ited witness to go to plaintiff and induced plaintiff to negotiate for the purchase of the property, and that witness accordingly went to plaintiff and represented to him that defendant's agent was authorized to employ him on defendant's behalf, was admissible to show plaintiff's employment by defendant's agent. 8t. L. S. W. R. Co. of Texas v. Irvine (Tex. Civ. App. '05), 89 S. W. 428 Sec. 740. Any competent evidence to prove or to disprove plaintiff's employment. Where defendant denies that he agreed to pay plaintiff a commission for selling his property at a certain price as claimed by plaintiff, evidence of one to whom defendant had given an option prior to the alleged agreement that he was able and willing to pay said price without any deductions therefrom, was competent to disprove the contract. Dexter v. Collins, 21 Colo. 455, 42 P. 664 ; Border v. Isherwood, 120 Iowa, 677, 94 N. W. 1128 ; McDermott v. Mahoney, 119 Iowa, 470, 115 N. W. 32, 130 Iowa, 200; Lewis v. Susmilch, 130 Iowa, 203, 106 N. W. 624; Jennings v. Eooney, 183 Mass. 577, 67 N. E. 665; Childs v. Ptomey, 17 Mont. 502, 43 P. 714; Jackson v. Higgins, 70 N. PLEADINGS, PRACTICE, ETC. 663 H. 637, 49 A. 574; Miller v. Irish, 3 Hun (N". Y.), 352, 67 Barb. 256, 5 Thomps. & C. 707, affirmed 63 N. Y. 652; Hodgkins v. Mead, 8 N". Y. S. 854; Dayton v. Eyerson, 13 How. Pr. (N. Y.) 281; Bertelson v. Hoffman, 35 Wash. 459, 77 P. 801; Going v. Cook, 1 Wash, 224, 23 P. 412 ; Indiana Fruit Co. v. Sandlin, 125 Ga. 222, 54 S. E. 65; Harvey v. Lindsay, 117 Mich. 267, 75 N. W. 627; Williams v. Nelson, 145 P. 39, 45 Utah, 255; Davis v. Keasy, 93 A. 335, 247 Pa. 303; Loving v. Kane, 180 111. App. 614; Morrison v. Franck, 117 P. 308, 59 Or. 429; Justy v. Erro, 117 P. 575, 16 Cal. App. 519; Riggins v. Sass, 143 S. W. 689, Tex. Civ. App. ; Silberkraus v. Winnie, 142 N. Y. Sup. 887, 158 App. Div. 50; Andrew v. Mace, 194 S. W. 598, Tex. Civ. App. ; Smith v. Sharp R. E. Co., 77 S. 40, 200 Ala. 666; Cooper v. Newsom, 224 S. W. 568, Tex. Civ. App.. Sec. 740a. Evidence admissible to show transaction occurred within the period alleged by plaintiff. In an action for commissions for a sale of land, it was not error to admit evidence as to the authorization that it dated prior to December 8, 3905, where the amended complaint sets out that in June, 1904, plaintiff was employed by defendants to procure purchasers for the land, and that such work was continued until April, 1906, when the lands were sold, for the evidence objected to goes to prove the transaction between June, 1904, and December 8, 1905. Ross v. Carr (N. M. Sup. '09.), 103 P. 307. Sec. 740b. Real contract admissible to show difference from that sued on. The real contract is admissible in evidence to show difference from that sued on. Tracey Land Co. v. Land etc. Co., 131 Iowa 40, 107 N. W. 1029. Sec. 741. Evidence to prove defendant's agent had authority to employ a broker. Where plaintiff claims to have been employed as broker by the husband as agent of defendant, any competent evidence is 664 AMERICAN LAW ttTCAT. ESTATE AGENCY. admissible which tends to show that the husband had authority to employ a broker on behalf of his wife. Eichberg v. Ware, 92 Ga. 508, 17 S. B. 770; Hall v. Grace, 179 Mass. 400, 60 N. E. 932; Darling v. Howe, 14 N. Y. S. 561, 60 Hun, 578. Sec. 742. Evidence as to the value of property, on issue as to good faith of broker in accepting employment. In an action against their principal for damages for the loss of commissions caused by the refusal to accept the deed and carry out the contract \vhere the defense was want of mental capacity to contract, evidence of the actual value of the prop- erty is competent only when offered to show that the price offered was so exorbitant as to be inconsistent with good faith on the part of the broker in undertaking to contract for the purchase at the price authorized. Cavender v. Waddingham, 5 Mo. App. 457. Sec. 743. Evidence to prove or to disprove plaintiff the pro- curing cause of the transaction. In an action by a broker for compensation, the defense being a general denial, any competent evidence is admissible in behalf of plaintiff or defendant which tends to prove or to disprove that plaintiff was the procuring cause of the transaction into which the defendant and the customer entered ; if any act of the broker in pursuance of his authority to find a purchaser is the initiatory step that leads to the sale consummated, the owner must pay the commission. Hoadley v. Danbury Sav. Bk., 71 Conn. 599, 42 A. 667, 44 L. R. A. 321; Doonan v. Ives, 73 Ga. 295; Smiley v. Bradley, 18 Colo. App. 191, 70 P. 696 ; Adams v. Me- Laughlin, 159 Ind. 23, 64 N. E. 462; Hunn v. Ashton, 121 Iowa, 265, 96 N. W. 745; Saivyer v. Bowman, 91 Iowa, 717, 59 N. W. 27 ; Newton v. Eiichie, 75 Iowa, 91, 39 N. W. 209 ; Creager v. Johnson, 114 Iowa, 249, 86 N. W. 275; Brooks v. Leathers, 112 Mich, 463, 70 N. W. 1099 ; Kerr v. Cusenbnry, 69 Mo. App. 221; Willard v. Wright (Mass. Sup. '09), 89 N. E. 559; Childs v. Ptomey, 17 Mont. 502, 43 P. 714; Waters v. Rafalsky, 119 N. Y. S. 271 ; Lockhart v. Hamlin, 190 N. Y. 132, 82 N. E. 1094 ; Doran v. Bussard, 45 N. Y. S. 387, 18 App. Div. 36 ; Goldsmith v. Cook, 14 N. Y. S. 878, Rev. 13 N. Y. S. 578 ; Bowser v. Field PLEADINGS, PBACTICE, ETC. 665 (Tex. Civ. App. '91), 17 S. W. 45; Larsen v. Thoma (Iowa Sup. '09), 121 N. W. 1059; Hughes & Thurman v. Dodd, 146 S. W. 446, 164 Mo. App. 454; Obets v. Maney, 146 S. W. 351, Tex. Civ. App. ; Pope v. Ansley Realty Co., 135 S. W. 1103, judg. rev., 151 S. W. 525, 105 Tex. 440; Davis v. Clausen, 57 S. 79, 2 Ala. App. 378; Cameron v. Powers, 57 S. 888, 63 Fla. 108; Fre- del v. Boldinger, 138 N. Y. Sup. 147; OwcharoffsJcy v. Trustees of Welch Gal Me. Church, 148 N. Y. Sup. 138, 86 Misc. Rep. 36; Naulty v. Gorham Mfg. Co., 164 N". Y. Sup. 328, 178 App. Div. 36; Kamp v. Madison, 161 N. W. 809, -- S. D. Sup. ; Ford v. Cole, 195 S. W. 661, Tex. Civ. App. ; Foote v. Cohen, 199 111. App. 462; McLaughlin & Co. v. Southern Hotel Co., 177 N". Y. Sup. 323; Karr v. Moffett, 187 P. 683, den. re., 185 P. 890, Kan. Sup. . Sec. 743a. Proper to show purchaser's state of mind regard- ing the purchase. In determining the question which one of two brokers effected a sale, it is proper to show by the purchaser his state of mind regarding the purchase after he had left the broker claiming the commission. McGuire v. Carlson, 61 111. App. 295; Begelin v. Lothgren, 207 111. App. 409. Sec. 744. Evidence to prove or to disprove customer's ability, readiness and willingness to buy. Where the owner of land refused to complete a sale to a pur- chaser introduced by a broker, evidence of the prospective pur- chaser in an action by the broker for commissions that at the time he was introduced to the land owner he was ready and willing to buy the land on the terms mentioned in the contract, and so stated to the owner, was admissible. McDermott v. Ma- honey, 119 Iowa 470, affirmed 115 N. W. 32, 139 Iowa 292; Walsh v. Gay, 63 N. Y. S. 543 ; 49 App. Div. 50 ; Kirchner v. Reichardt, 27 Misc. 530, 58 N. Y. S. 314; Joffe v. Nagel, 114 N. Y. S. 905; Hutchinson v. Plant, 105 N. E. 1017, 218 Mass. 148 ; Smith v. Sharp R. E. Co., 77 S. 40, 200 Ala. 666 ; Columbia Realty & Inv. Co. v. Alameda Land Co., 168 P. 64, re. den., Id. 440. Or. Sup. ; Fisher v. Slcidmore Land Co., 179 N. W. 666 AMERICAN LAW REAL ESTATE AGENCY. 152, Iowa Sup. ; Cooper v. Newsom, 224 S. W. 568, Tex. Civ. App. . Sec. 745. If the contract omits compensation evidence of the reasonable value of broker's services. In an action for services rendered by real estate brokers in procuring a purchaser for defendant's land, where there were no written pleadings in the trial court and no testimony of any definite contract, evidence of the value of the service based on the price for which the land sold was properly admitted and a judgment entered upon that basis was proper. Brand v. Mer- ritt, 15 Colo. 286, 25 P. 175; Oeiger v. Riser (Colo. Sup. '10), 107 P. 267; Glover v. Henderson, 120 Mo. 367, 25 S. W. 175; Bickart v. Hoffman, 19 1ST. Y. S. 472; Carruthers v. Towne, 86 Iowa, 318, 53 N. W. 240; Knight v. Knight, 142 111. App. 62; Weil v. Schwartz (Tex. Civ. App. '09), 120 S. W. 1039; Fleming v. Wells (Colo. Sup. '09), 101 P. 66; W. B. McGerry & Co. v. Marsicano, 137 P. 40, 23 Cal. App. 55; Baker v. Barker, 137 N". W. 7, 118 Minn. 419; Stevens v. Wis. Farm Loan Co., 145 K W. 173, 124 Minn. 421 ; Toland v. Williams & Wiley, 129 S. W. 392, - Tex. Civ. App. ; Bond v. Hancock, 163 S. W. 660, Tex. Civ. App. ; McEwan v. Vollentine, 170 P. 490, -- Okl. Sup. ; Regelin v. Lothgren, 207 111. App. 409; Kappes v. Bacon, 209 111. App. 290; Stockberger v. Zane, 125 N. E. 65, Ind. App. . Sec. 746. Evidence to prove or to disprove existence of custom. Where a principal claimed that its broker had been notified of its custom to give only quit-claim deeds to purchasers of its real estate, evidence to show that after its refusal to give a deed with warranty, it offered to give such a deed if an increased price was paid, was admissible to show that no such custom existed. Beach v. Traveler's Ins. Co., 73 Conn. 118, 46 A. 867. Sec. 747. Evidence of option holder to disprove agency. Where defendant denied that he agreed to pay plaintiff a commission for selling his property at a certain price, as claimed by plaintiff, evidence of one to whom defendant had given an PLEADINGS, PRACTICE, ETC. 667 option price to the alleged agreement, that he was able and willing to pay such price, without any deduction therefrom, was competent to disprove the agency. Dexter v. Collins, 21 Colo. 455, 42 P. 664. Sec. 748. Entry in book of price agreed on, made in defend- ant's presence. In an action by real estate brokers for commissions on a sale, where the question in dispute is whether plaintiffs had authority to sell at the price named, an entry in plaintiff's books of the price agreed on, made by them in defendant's presence and at the time of their conversation with him, is admissible in evi- dence, though written in cipher. Monroe v. Snow, 131 111. 126, 23 N. W. 401. Sec. 749. Oral evidence to show that written agreement was obtained by fraud. The rule of law forbidding the admission of evidence of an oral agreement made prior to or contemporaneously with the written agreement in question, does not preclude the admission of evidence tending to show that the written agreement was fraudulently obtained, or that it resulted from accident or mutual mistake. Culp v. Powell, 68 Mo. App. 238 Sec. 749a. Parol evidence admissible to rebut that of plain- tiff. In an action for a real estate broker's commissions, parol evi- dence that the written agreement of prospective purchasers with the owner was not finally binding, and that after it was revoked, plaintiff sought to procure new purchasers, is admis- sible on behalf of such owner to rebut the effect of such agree- ment in evidence. Folinsbee v. Sawyer, 157 N. Y. 196, 51 N. E. 994; Buttz v. Cook, 113 P. 282, 62 Wash. 90. Sec. 749b. Evidence admissible to show contract for broker's compensation made as alleged. Evidence in denial of defendant's contention, in a real estate broker's action for commission, that a contract for compensation was not made as alleged; held, properly admitted. Nock v. Guth- rie, 86 A. 859, 239 Pa. 317. 668 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 750. Evidence of length of time land for sale by broker, to show knowledge by purchaser. In an action for commissions for procuring a purchaser for land where the land was purchased by one claiming to buy on his own initiative, evidence that the land had been listed two months before the transaction in issue, and the purchaser informed of the land being for sale from that source, was ad- missible as tending to explain how the purchaser ascertained that the land was for sale and came to negotiate with defend- ant for its purchase. Ryan v. Page, 134 Iowa 60, 111 N. W. 405. Sec. 751. Contract between plaintiff and third person to show he desired to purchase. In an action to recover commissions for a sale of defendant's land, a contract entered into between plaintiff and a third per- son setting forth the terms of the purchase, was admissible to show that such third person was willing to purchase the prop- erty, though plaintiff had no authority to enter into a contract which was binding on defendant. Eepner v. Ford (N. Dak. '07), 111 N. W. 619; Clark v. Wilson, 41 Tex. Civ. App. 450, 91 S. W. 627. Sec. 752. Evidence concerning purchaser's securing funds to buy, on issue as to ability. In an action for a broker's commissions, evidence concern- ing arrangements made by the purchaser's broker for funds with which to complete the purchase, and the financial ability of the concern from which the funds were to be secured, was admissible. Leuschner v. Patrick (Tex. Civ. App. '07), 103 S. W. 664. Sec. 752a. Evidence admissible on issue whether broker was a joint purchaser. In a broker's action for commissions, evidence that to en- able the purchasers to make the cash payment required plain- tiff agreed to loan them the amount of the commissions claimed by him, was admissible on the issue whether plaintiff was a joint purchaser. Smith v. Fears (Tex. C. A. '09), 122 S. W. 433. PLEADINGS, PRACTICE, ETC. 669 Sec. 753. As to what occurred between plaintiff and another as to drawing deed to purchaser. In an action for a broker's commissions, evidence as to what occurred between plaintiff and another with reference to draw- ing the deed to the purchaser plaintiff claimed to have secured was admissible. Leuschner v. Patrick (Tex. Civ. App.), 103 S. W. 664. Sec. 754. Evidence of value of lands as bearing on value of plaintiff's services. Where plaintiff sued on a quantum meruit for services in obtaining options to purchase coal lands for defendant, evi- dence as to the value of the lands was admissible as bearing on the value of plaintiff's services. Denk Bros., C. & C. Co. v. Stroetter, 229 111. 134, 82 N. E. 250; Huff v. Hardwick, 19 Colo. App. 416, 75 P. 593 ; Lealce v. Scaief, 140 S. W. 814, Tex. Civ. App. ; Williams v. Phelps, 171 S. W. 1100; - Tex. Civ. App. ; Stevens v. Wis. Farm Loan Co., 145 N". W. 173, 124 Minn. 421 ; Chandler v. Gaines-Ferguson Realty Co., 224 S. W. 484, Ark. Sup. . Sec. 755. Declarations of defendant's agents as part of the res gestae. In an action for a broker's commissions, declarations of de- fendant's agents as to the broker's commissions, made at the time they were negotiating and closing the deal with the pur- chaser found by the broker, are admissible as part of the res gestae. Fritz v. Chicago Grain, & Ele. Co., 136 Iowa, 699, 114 N. W. 193. Tuffree v. Binford, 130 Iowa, 532, 107 N. W. 425 ; Joff e v. Nagel, 114 N. Y. S. 905 ; Mechem on Ag. Sec. 715. Sec. 756. Where terms of sale were not given, evidence of purchaser's refusal to accept. Where, in an action by a real estate broker for commissions for procuring a purchaser of real estate, it appears that the terms of sale were not given by defendant at the time the broker was employed, evidence of occurrences at the meeting of the parties resulting in the purchaser's refusing to accept 670 AMERICAN LAW REAL ESTATE AGENCY. the contract proposed was admissible, whether defendant had an option on the property or had merely authority to sell it. Behrman v. Marcus, 107 N. Y. S. 12. Also where terms were not expressed in written agreement, parol evidence to estab- lish same. Casey v. Richards (Cal. App. '09), 101 P. 36. Sec. 757. Evidence as to custom of agents to look after vacant property. The testimony of real estate agents in St. Louis that it is a custom or usage of real estate agents having in charge prop- erty for the collection of rents to look after the property while vacant, is admissible to explain the intended scope of the agency. Cameron v. McNa/ir, 76 Mo. App. 366. Sec. 758. Deed and receipt as tending to show defendant could have obtained the property. In an action for a broker's commissions for negotiating a purchase which defendant refused to consummate, a deed and receipt purporting to have been signed and acknowledged by the owner, and proof of a tender, were admissible, with other proof, as tending to show that defendant could have obtained the property at his offer had he desired to do so, where no objection was raised as to their form or genuineness. Hanna v. EspaUa, 148 Ala, 313, 42 S. 443. Sec. 758a. Evidence admissible to show defendant refused to execute deeds to buyers procured by broker. Evidence that the agents of the owner of lands, with the approval of the owner, sold a part of them which had been intrusted to plaintiffs for sale, to persons who were found by plaintiffs, and induced by them to come on the lands with the purpose of purchasing, is admissible in an action against the owner for a breach of his contract in refusing to execute deeds to buyers found by plaintiffs. Burnett v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775. Sec. 759. Evidence of person who purchased claim that de- fendant had no part in the transaction. In an action for commissions by a person engaged to secure title to certain mining properties, where defendant's answer PLEADINGS, PRACTICE, ETC. 671 averred that he had taken no part in the transaction involving their subsequent purchase by another person, and plaintiff had testified that he would not be entitled to commissions had the person obtaining the purchase dealt with persons other than defendant, evidence of the person who purchased the claims that defendant had no part in the transaction, was admissible. Bailey v. Carlton, 43 Colo. 4, 95 P. 542. Sec. 760. Evidence tending to show defendants held them- selves out as partners. In an action by a real estate broker for commissions, wherein one defendant filed a separate plea denying that he was justly liable with his co-defendant, evidence was admissible by the broker as to various trips made by him with his co-defendant around the country for the purpose of selling lands, and the action of the defendant denying joint liability therewith, as was also evidence by another of ,.a purchase by him of land from defendants jointly, as tending to show the relation of defendants and that they held themselves out as partners. M c- Cann v. Meyer, 232 111. 507, 83 N. E. 1042. Sec. 761. Prices at which similar lands were selling as evi- dence of good faith. In >an action by a real estate agent for commissions, evidence of the prices at which neighboring lands of the same kind were selling at the time the sale was made is admissible to show that a good price was realized, thereby tending to prove faithfulness and efficient service. Anderson v. Lewis 64 W. Va. 297, 61 S. E. 160. Sec. 761a. Competent to show intentions of parties by subse- quent dealings. In an action by an agent against the principal for a com- mission on a real estate deal, it is competent to show the real intentions of the parties as to carrying out the contract by their subsequent dealings in pursuance thereof. Gibson v. Hunt (Iowa Sup. '03 ), 94 N. W. 277; Howe Banking & Realty Co. v. Baum, 82 A. 970, 85 Conn. 383; Bunyard v. Farman, 161 S. W. 640, 176 Mo. App. 89; Duff & Conger v. Makley, 175 N. Y. Sup. 777; 672 AMERICAN LAW HEAL ESTATE AGENCY. Chandler v. Gaines-Ferguson Realty Co., 224 S. W. 484, Ark. Sup. . Sec. 761b. Evidence admissible on question whether broker had abandoned the contract. Where, in an action by plaintiff for commissions on a sale of defendant's property, defendant alleged an abandonment of the contract, statements of plaintiff that he continued his efforts to dispose of the property were competent on the question of whether he had abandoned the contract. Clements v. Stapleton, 136 Iowa, 137, 113 N. W. 546. When a broker employed to find a purchaser, after repeated efforts, stated to the owner that he could not "sell the place," it indicated an abandonment of the agency. McFarland v. Boucher, 134 N. W. 91, 153 Iowa, 716. Sec. 761c. Broker's contract admissible in evidence. Where the assignee of certain real estate brokers sued in as- sumpsit to recover compensation for a broker's services rendered under a written contract with defendant, which defendant had cancelled before the termination of the contract term, the contract was admissible in evidence. Breen v. Roy (Cal. App. '08 ), 97 P. 170; James E. Carlson, Inc. v. Bdbler, 174 N. W. 824, Minn. Sup. . Sec. 761d. Evidence held admissible. (1) Agreement between brokers and a prospective purchaser, by which he employed the brokers to procure a buyer from him at an increased price, made subsequent to the original employ- ment; held, admissible under a general denial. Dickinson v. Ty- sen, 103 1ST. E. 703, 209 N. Y. 395, rev. judg., 132 N. Y. Sup. 1126, 148 App. Div. 894. (2) In an action by a broker for commissions in procuring a purchaser, evidence of the length of time covered by the broker's correspondence with the landowner is properly admitted. Alex- ander v. Smith, 61 S. 68, 180 Ala. 541. (3) Evidence held admissible to show the meaning of the phrase "it is closed," in a real estate broker's contract, which en- PLEADINGS, PRACTICE, ETC. 673 titled him to commission only in case the sale was closed. Nut- ting & Co. v. Kennedy, 85 S. E. 767, 16 Ga. App. 560. (4) In an action by a real estate broker for commissions on a sale of land alleged to have been made by agreement with the owner, evidence of plaintiff that he had listed the land on his books is admissible. Wright v. Olson, 191 111. App. 272. (5) In an action for procuring a purchaser for land, evidence was admissible by the proposed purchaser that when he told the seller's agent that he would buy if a certain other person did not, he was willing at that time, and executed a written contract to purchase on that condition. Beomer v. Stuber, 145 N. W. 936, 164 Iowa, 309. (6) In an action by a broker for commissions, evidence that the purchaser was not influenced by the broker in making the purchase held admissible. Howard v. Street, 93 A. 923, 125 Md. 289. (7) In a suit by one broker against another, who had charge of his work and made a sale; Jield, that plaintiff might show the amount which defendant received. Debo v. Gamble, 152 N". W. 979, 186 Mich. 583. (8) Where, in an action for commissions, there is a contra- versy as to the listing agreement and as to whether plaintiffs ef- forts to make a sale were communicated to the owner, evidence of such efforts is competent. Wright v. Waite, 148 N. W. 50, 126 Minn. 115. (9) Where defendants contracted to pay intestate a specified sum on a sale of certain land for intestate's services, evidence of the wife of the landowner that when papers were prepared for the sale of the sixth interest, it was agreed that no commissions should be paid on account of that deal, was admissible. Smith v. Crane, 154 S. W. 857, 169 Mo. App. 695. (10) In an action for a broker's commission, evidence that the broker's manager had made an appointment by telephone for the seller to meet the buyer in another city was admissible. National Milling Co. v. Kirby, 94 A. 149, R. I. Sup. . (11) In a broker's action for commissions, testimony regarding the transaction, mentioned in a letter which, if it related to the transaction in question, tended to show an abandonment by the 674 AMERICAN LAW HEAL ESTATE AGENCY. broker of his efforts to make a sale ; lield, wrongly excluded. HacTe- ett v. Straw, 144 N. W. 655, 33 S. D. 17. (12) In an action by a broker for commissions, certain evidence held admissible to show that a sale could not be made on the designated date. Longworih v. Stevens, 145 S. W. 257, Tex. Civ. App. . (13) Under allegation in an answer in an action for a broker's commission, that if plaintiff was instrumental in effecting the sale, his services were purely voluntary and without promise of compensation, evidence was admissible that plaintiff and defend- ant were closely related, so as to raise the presumption that the services were gratuitous. Carl v. Wolcott, 156 S. W. 334, Tex. Civ. App. . (14) Where, in an action for broker's services in selling land during 1910, defendant claimed termination of contract for plaintiff's lack of diligence, evidence of notice to plaintiff by de- fendant's president, or another at his direction, that the contract was terminated, was admissible. Putnam Land & Dev. Co. v. EJser, 159 S. W. 190, Tex. Civ. App. . (15) In an action for commissions on a sale of land under an alleged verbal agreement, defendant's testimony that he under- stood the broker was buying the property, and expected to resell it, improperly excluded. Cardozo v. Middle Atlantic Emi. Co., 82 S. E. 80/116 Va. 342. (16) Where a real estate broker, suing for commissions, claimed that the customer produced was ready, able and willing to buy on the conditions fixed by defendants, who sought to show the broker's knowledge of an additional condition, with which the customer in question and the broker's customer refused to com- ply, it was error to exclude testimony showing all the negotia- tions with both customers in the broker's presence, and the pro- posed contracts with the customers submitted to them by defend- ants during such negotiations. Arnold v. Schmeidler, 129 N. Y. Sup. 408, 144 App. Div. 420. (17) In a broker's action for commissions for an exchange of land for a stock of goods, evidence as to the nature of the ex- change contract and the value of the goods, and as to the reasons for the failure to complete the exchange, was relevant and compe- tent. DuJce v. Graham, 143 N. W. 817, 163 Iowa, 272. PLEADINGS, PRACTICE, ETC. 675 (18) In an action for broker's commissions, letters exchanged between the owner and the purchaser; held, admissible to show that the owner himself procured the purchaser. Stafford v. Eainey, 149 P. 611, 27 Cal. App. 224. (19) A letter written to a purchaser by defendant's attorneys, on her behalf, and stating that they were willing to conclude the matter, evidence held admissible. Swift v. Moore, 82 S. E. 914, 15 Ga. App. 254. (20) A telegram sent by the broker to the joint owner who had listed the land, asserting the broker's claim for commission, was properly admitted upon a showing of knowledge of the other joint owners of the broker's claims, there being other evidence that all the owners knew of the telegram. Well v. Harding, 159 S. W. 1029, Tex. Civ. App. . (21) Evidence that defendant made no other objections to the contract of sale denied than those enumerated by him at that time was admissible. J. N. Durilop & Co. v. Anderson, 133 N". W. 910. (22) Evidence of an express offer of a commission to a third person for bringing about a sale to another, was competent to show a motive for the principal's desire to abandon the agree- ment with customers procured by the broker. Hutchinson v. Plant, 105 N". E. 1017, 218 Mass. 148. (23) Evidence of the amount obtained by the principal after abandoning the agreement with the customers procured by the broker, was admissible in the discretion of the judge. Id. (23) Evidence of parol condition in owner's agreement to accept land in lieu of cash; held admissible, as tending to show lack of fidelity on the part of the broker. Worthen v. Stewart, 172 S. W. 855, 116 Ark. 294. (24) In a case for broker's commissions for securing purchasers of certain real estate for defendant at a partition sale, evidence that at the sale one of the plaintiffs was instrumental in stopping the bids of an adverse bidder, on the ground that he was unwilling to comply with the terms of the sale, and thereby render the ser- vice in accordance with his duty, as representative of the defend- ants, was admissible. Davis v. Gross, 134 S. W. 83, 153 Mo. App. 607. 676 AMERICAN LAW REAL ESTATE AGENCY. (24) Where defendants employed plaintiffs to secure certain property about to be sold at a partition sale, evidence that plain- tiffs agreed not to have any other bidders at the sale than defend- ants was admissible. Id. (25) Where it appeared that the owner orally employed the brokers, and then contracted a sale to the purchaser procured by them, an agreement between the purchaser and the brokers, by which the purchaser employed the brokers to procure a buyer from him at an advanced price; held, admissible on the question whether the brokers in good faith performed their contract. Dick- inson v. Tyson, 103 N. E. 703, 209 N. Y. 395, rev. judg., 132 N. Y. Sup. 1126, 148 App. Div. 894. (26) In action for commission for selling a farm of defendant, evidence that the broker had agreed to assist the purchaser in procuring the farm, held competent, on the issue of his agency for the purchaser. Hoffman v. Steile, 139 N. W. 733, 152 Wis. 84. (27) Where a real estate agent was the secret but accredited representative of defendants in an attempt to sell certain land to plaintiff, evidence of what he did and said while in the per- formance of his duty as agent was admissible against defendants. Schiff er v. Anderson, 146 F. 457, 76 C. C. A. 667. (28) In an action by assignee of real estate broker to recover as commission payment received from purchaser, and paid by broker to owner as consideration for a contract, giving purchaser the right to consummate the sale, earnest money receipt given by owner to broker is material as tending to show that payment was made as consideration for the contract. Halloran v. German American Mer. Bk., 165 P. 80, Wash. Sup. . (29) In broker's action for commission on sale of farm, where plaintiff testified that one of the terms of contract was that buyer must first dispose of his farm, plaintiff was properly permitted to show that buyer had complied with conditions. McFarland v. Walton, 164 N. W. 737, Iowa Sup. . (30) In an action by a broker for compensation, in which de- fendant claimed fault of plaintiff in not procuring a person able and willing to make an agreed exchange, in that such party did not show a good and merchantable title to his land, and that the cause of failure of negotiations was in the defect in defendant's title, because of pending litigation; held, admissible to show that PLEADINGS, PRACTICE, El 677 the other party who was to make the exchange had notice of such defect in the title. Empire Securities Co. v. Noble, 81 S. 5, Ala. Sup. . (31) Where defendant had introduced proof as to the date of proceedings in another suit affecting title to the land and of the parties to it, etc., the record of such case was admissible to con- tradict or sustain that evidence. Id. (32) The record in another suit against defendant held admis- sible, since it may have involved title to land exchanged, as pre- venting the title from being merchantable, thus showing that the fault to consummate the exchange was the fault of defendant and not of plaintiff. Id. (33) In an action to recover an agreed broker's commission for procuring a purchaser for real property, brought against the husband of one of the twelve heirs thereto, it was permissible for the defendant to show, as bearing on the probability of his having employed plaintiff, that the property was held by the twelve heirs, the consent of all of whom would be necessary to effect the sale. Baum v. Kelly, 176 E". Y. Sup. 22. (34) A written agreement to pay a broker a stated commis- sion for selling real estate, satisfying the statute of frauds, and purporting on its face to have been made after the sale, was prop- erly admitted in evidence to show the relationship of principal and agent, in a suit for money had and received by such broker. Puffer v. Bodley, 181 P. 1, Or. Sup. . (35) Evidence as to the market value of land conveyed to plaintiff by defendant, as part of the purchase price for land sold by plaintiff to another through defendant as agent, is admissible in action to recover the sum received by defendant in payment for such land, as part of the original cash offer for plaintiff's land, not disclosed by defendant to plaintiff, to show that plain- tiff did not commit a breach in repudiating the transaction. Id. (36) In a land broker's action upon principal's written agree- ment to pay for services performed, where answer alleged there was no consideration for agreement, parol evidence was not in- admissible as being violative of the statute of frauds requiring a brokers' contract to be in writing, but was admissible for the purpose of showing consideration. Batzlaff v. Trainor-Desmond Co., 183 P. 269, Cal. App. . 678 AMEBICAN LAW EEAL ESTATE AGENCY. (37) In a broker's action for commission on a sale of listed property, any testimony tending to show that there was no agree- ment in the same sense between the parties relative to alleged contract of listment would be admissible. Pope v. Peoples, 101 S. E. 303, Ga. App. . (38) In an action for a commission under a valid brokerage contract authorizing a sale on certain terms as to down payment and as to the balance, it was proper to admit proof that defendant had later sold the land and received a small payment down. Ed- mundson v. Phenix, 178 N. W. 893. (39) A letter written to defendant by a stranger, on behalf of plaintiff, communicating the fact and terms of sale negotiated by plaintiff, was admissible. Id. (40) Where amount of broker's commission for services in ef- fecting an exchange of land is not agreed on, the fair market value of the property exchanged or offered for exchange would be competent and relevant. Morrison v. Jackson, 85 S. 573 (Ala. App.). CHAPTER X. EVIDENCE INADMISSIBLE. Sec. 762. On bill for specific performance, that land in one year doubled in value. On a bill for specific performance of a contract to convey, in which the defense is, that the broker who made the sale did so without authority of defendant, evidence that the land in one year doubled in value is inadmissible. Wilkinson v. Churchill, 114 Mass. 184; Groin v. Hess, 102 Iowa, 140 71 N. W. 218. Compare Sec. 572. Sec. 763. Agent's private record book to prove authority to sell land. The private record book of a real estate agent is not com- petent to prove, in an action for commissions, that authority had been given to him by the owner of the land to sell the same. Boyd v. Jennings, 46 111. App. 290. Compare Monroe v. Snow, 131 111. 126, 23 N. E. 401. Sec. 764. Evidence to prove custom among brokers in ex- changes to charge each party. An offer to prove a general custom among brokers acting for both parties to an exchange of lands to charge commissions to each, held properly refused, for the reason that it appeared that the broker was the agent of one of the parties, and could not, therefore, legally demand compensation from the other. Dartt v. Somnesym, 86 Minn. 55, 90 N. W. 115. See also Sec. 578. Sec. 765. Evidence of an offer of compromise. Evidence that the owner refused to pay the broker, but of- fered, as a compromise, to pay a fixed amount and to give an- other specified amount to a church, is inadmissible, under the 679 '680 AMERICAN LAW REAL ESTATE AGENCY. rule that propositions made with a view to a compromise are not proper evidence. Emery v. Atlanta R. E. Ex., 88 Ga. 321, 14 S. E. 556 ; Ross v. Decker, 68 N. Y. S. 790, 34 Misc. 168. Sec. 766. Evidence by unexpert witnesses as to the value of a broker's services. It was not error to refuse to admit the opinions of witnesses as to the value of plaintiff's services in negotiating a purchase, the witnesses not being experts and having no better means of forming a judgment than the jurors. Miller v. Early, 22 Ky. L. R. 825, 58 S. W. 789. Sec. 766a. Evidence by expert as to value of property, and as to his competency. Where real estate broker is testifying as to the value of an op- tion, evidence showing his familiarity with the property, and its increase in value in the past, is admissible to show his compe- tency as an expert. Eastman v. Dunn, 83 A. 1057, 34 R. I. 416. Sec. 767. In an action for executed Jale evidence of respon- sibility of purchaser. In an action by a broker against a vendor for his commis- sions, the contract between the vendor and purchaser being executed, and there being no allegation or proof that the bro- ker induced the vendor to execute the contract, or any repre- sentation of bad faith, testimony as to the financial ability of the purchaser was inadmissible. Fleet v. Barker, 104 N. Y. S. 940, 120 App. Div. 455. Compare Dodson v. Milliken, 27 App. (D. C.) 500. Sec. 768. Evidence that defendant wanted witness to advise him as to purchaser's proposal. In an action for a broker's commissions, evidence that de- fendant applied to witness to know what to do concerning the proposed purchaser's proposition to pay for the land in monthly installments, and the witness's advice given in response, was in- admissible. Leuschner v. Patrick (Tex. Civ. App. '07), 103 S. W. 664. PLEADINGS, PUACTICE, ETC. 681 Sec. 769. Oral evidence to extend expired written authority to agent. Written authority was entered into giving a broker the ex- clusive right to sell real estate at a fixed price before a certain date. Held, that an offer to show that at the time of the exe- cution of the contract defendant told plaintiff that if the said sale was effected after the expiration of the written contract defendant would pay the broker his commission, was inadmis- sible. Laxley v. Studebacker, 75 N. J. L. 599, 68 A. 98. Sec. 769a. Written contract insufficient and parol evidence inadmissible. Under Ballinger's Annotated Code and Statutes, Sec. 4576,- amended by laws of 1905, p. 110, c. 58, requiring contracts for the employment of brokers to sell real estate for a commission to be in writing, a written contract employing a broker to pro- cure a purchaser of real estate for a fixed price net, containing no stipulation for the payment of a commission, and showing the erasure in the printed form used of the words providing for the payment of a commission, is insufficient, and parol evidence fixing the liability for the commissions is inadmissible. Foote v. Bobbins, 50 Wash. 277, 97 P. 103; Holland v. Johnson, 174 N. W. 874, N. D. Sup. . Sec. 770. In an action by architect for fees, cost of building given building department. - In an action by an architect for fees for making plans for a building at a specified per cent, of its cost, a statement as to the cost in the plans filed with the building department, was inadmissible. Israels v. McDonald 107 N. Y. S. 826 123 App. Div. 63. Sec. 771. In an action for commissions evidence of defend- ant's dealings with other brokers. In an action by a broker for compensation on the issue as to whether the contract with the principal called for a com- mission of a certain percentage of the proceeds of the sale, or of the proceeds over a specified price, evidence as to defendant's dealings with other real estate agents, and the terms under 682 AMERICAN LAW HEAL ESTATE AGENCY. which he had listed the land with them, was inadmissible. Lloyd v. Eerley (Tex. Civ. App. '07), 106 S. W. 696; Ross v. Carr (N. M. Sup. '09), 103 P. 307; Leander v. Graves (Colo. Sup. '09), 100 P. 403; Steinman v. Henry Morganthau Co., 154 N". Y. Sup. 216; Engles v. Blacker, 192 S. W. 193, 127 Ark. 385. Sec. 771a. Plaintiff's testimony as to loss of profits. In action against railroad for services rendered in negotiating leases and in surrendering, plaintiff's own evidence as to alleged loss of profits from plaintiff's retail grocery business, etc., held in- admissible. Wash. B. & A. Elec. R. v. Moss, 100 A. 86, 130 Md. 198. Plaintiff's own evidence as to the value of advantage of property to road was inadmissible. Id. Sec. 771b. Evidence as to property not involved in suit inad- missible. Under a declaration claiming commissions only on property purchased by defendant, evidence of negotiations by plaintiffs in regard to other property is inadmissible. Martien v. Mayor, etc., Baltimore, 109 Md. 260, 71 A. 966. Sec. 772. Receipt in connection with another exchange of the same property. In an action by real estate brokers for a commission for negotiating an exchange of defendant's property, which de- fendant refused to carry out, a receipt given by one of the plaintiffs to defendant for a commission paid him by defend- ant for effecting an exchange of the same property with an- other purchaser is inadmissible, because foreign to the issues. Goodman v. Linetzky, 107 N. Y. S. 50. Sec. 773. Printed statutes of New Jersey, under plea of non- assumpsit. Where a resident of New Jersey sues to recover on a parol contract for commissions for a sale of real estate in New Jer- sey, the printed statutes of New Jersey requiring such con- PLEADINGS, PRACTICE, ETC. 683 tracts to be in writing were inadmissible under the plea of non- assumpsit, but only by way of special matter, after due notice. Galloway v. Prettynwn, 218 Pa. 293, 67 A. 418. Sec. 774. In action against husband for commissions, what was said between wife and purchaser. In an action against a husband for a broker's commissions for selling the wife's land, testimony that another told de- fendant that plaintiff tried to sell him the property at a profit above the figure the wife asked, and as to what was said be- tween the wife and one of the purchasers, was inadmissible. Green v. Brady, 152 Ala. 507, 44 S. 408. Sec. 775. Declarations and statements by plaintiffs as to sale of land, as self-serving. In an action for a broker's commissions, declarations and statements by the plaintiff as to the sale of the land, and what he would be entitled to, were self-serving and inadmissible. Leutscher v. Patrick (Tex. Civ. App. '07), 103 S. W. 664; Boss v. Muskowitz, 100 Tex. 434, 100 S. W. 768. Also by the owner as to the sale of the property. Goldstein v. D'Arcy, 201 Mass. 312, 87 N. E. 584. Sec. 776. On issue whether defendant's agent had authority Defendant's opinion. Where the issue was whether the defendant's agent had au- thority to make a certain contract, defendant's opinion to that effect was inadmissible, as being a conclusion of law. Roche v. Pennington, 90 Wis. 107, 62 N. W. 946. Sec. 776a. Statement by owner in regard to title the mere expression of an opinion. That a land broker was told by the owner that defects had been found in the title, but that he believed it was good, as they had owned the land thirty or forty years, was sufficient to put the broker on inquiry and charge him with notice of the dtefects; the statement by the owner that the title was 684 AMERICAN LAW REAL ESTATE AGENCY. good oeing merely an expression of opinion. Montgomery v. Amsler (Tex. Civ. App. '09), 122 S. W. 307. Sec. 776b. Admission of contract in evidence held prejudicial to plaintiff. "Where, in an action for broker's commissions for procuring a purchaser of real estate, the issue was whether plaintiff had been employed to procure a purchaser, the admission in evi- dence of a contract of sale drawn in the absence of plaintiff, stating that the seller and purchaser agreed that no broker had brought about the sale, and that no commission was to be paid to the broker, was prejudicial to plaintiff. Koch v. Bjor- kegran, 119 N. Y. S. 193. Sec. 777. In interpleader, declaration of principal that one was entitled to the fee. In an action in interpleader where the issue between the par- ties is as to the right to commissions for the sale of real es- tate, the declarations of the owner of the property sold, made some time after the sale had been effected and in the absence of the defendant, to the effect that he thought plaintiff was entitled to the commission, are inadmissible. Shipma-n v. Freeh, 3 N. Y. S. 932, 15 Daly, 151. Sec. 778. Statement by principal that absent broker had no authority to sell. In an action by a broker for commissions on a sale of land, where another broker claiming the same commissions is sub- stituted as defendant for the principal, he having paid the commissions into court, the principal's statement to one of the brokers, in the other's absence, that the absent broker had no authority to sell the land with a builder's loan, is properly ex- cluded. Id. Sec. 779. Under general denial, that defendant sold premise! before sale by plaintiff. Where the answer is a genera^ denial, the issue presented by the pleading is the truth of the allegations of the petition. PLEADINGS, PRACTICE, ETC. 685 Under such an issue affirmative proof in favor of the defend- ant can not be received, and an instruction submitting such proof to the jury is erroneous, and hence, evidence offered by defendant that he sold the premises to other parties before the sale by plaintiff is inadmissible. Griffith v. Woolworth, 44 N. W. 1137, 28 Neb. 715. Sec. 780. Unless pleaded, evidence that defendant defeated payment. In an action by a broker to recover commissions for selling land, evidence that the act of defendant prevented the hap- pening of the contingency on which payment was to be made was inadmissible, the excuse not being pleaded by the plain- tiff. Turner v. Lane, 93 N. Y. S. 1083, 47 Misc. 387. Sec. 781. Evidence that defendant's agent refused hotel to prospective purchasers. In an action by a broker for commissions alleged to have been lost by the refusal of his client to convey the land sold, evidence that the client's agent had refused the use of the client's shed and hotel at the place where the land is situated to prospective purchasers found by plaintiff was inadmissible. Burnet v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775. Sec. 782. Evidence as to value of services where contract fixed commission. Where, in an action for a broker's commissions for negotiat- ing a purchase, it appeared that if he had been employed, he was entitled to a fixed commission under the contract, evi- dence was inadmissible to show what was a reasonable commis- sion for the services. Hanna v. Espalla, 148 Ala. 313, 42 S. 443 ; McDermott v. Abney, 106 Iowa, 749, 77 N. W. 505 ; Beatty v. Russell, 41 Neb. 321, 59 N. W. 919; Evans v. Gay, 38 Tex. Civ. App. 442, 74 S. W. 575; Fortran v. Stowers, 113 S. W. 631 (Tex. Civ. App. '08) ; Goldstein v. D'Arcy, 87 N. E. 584, 686 AMERICAN LAW REAL ESTATE AGENCY. 201 Mass. 312; Canton-Hughes Pump Co. v. Llera, 215 F. 79, 131 C. C. A. 287 ; Kohen v. Kieley, 129 N. Y. Sup. 353 ; Kitchen v. Kaveny, 145 N. W. 543, 33 S. D. 312; Walker v. O'Neal, 94 S. E. 835, Ga. App. . Sec. 783. Evidence of option after sale had been completed. In an action by a broker for commissions, evidence of inde- pendent negotiations regarding an option after a sale had been completed by plaintiff is inadmissible, though it might have been competent if relating to negotiations before the sale was made. Reed v. Light, 170 Ind. 550, 85 N. E. 9 ; Geo. B. Loving Co. v. Hesperian Cattle Co., 176 Mo. 330, 75 S. W. 1095. Sec. 783a. Evidence held inadmissible. Where a contract between an owner of land and his agent for sale contained specific authority to the agent to sell a cer- tain acreage, evidence was inadmissible, in an action by the agent for commissions, to show that the tract contained a great- er acreage than stated, to defeat the claim, where there was no proof that the defendant asserted any claim to a greater acreage prior to the time plaintiff made the sale. Denton v. Howell (Tex. Civ. App. '05), 87 S. W. 221. Sec. 783b. When evidence of improvements inadmissible. Evidence of improvements made by a land owner, without the knowledge of his broker, can not be shown in an action by the broker for commissions for procuring a purchaser for the land at the price fixed before the making of the improve- ments, as tending to show that the price so fixed must have been changed. Hawley v. Haddocks, 25 Wash. 297, 65 P. 544. Sec. 783c. Testimony of greater acreage inadmissible to de- feat broker's right to commissions. Where a contract specifically authorizes the sale of a tract of land containing a certain number of acres, 'and it does not appear that prior to the sale the owner claimed, or that the agent knew, that there was a greater number of acres in the tract, evidence that the tract did contain a greater number of PLEADINGS, PRACTICE, ETC. 687 acres is inadmissible to defeat an action for commissions. How- ell v. Denton (Tex Civ. App. '08), 113 S. W. 314. Sec. 783d. Evidence held inadmissible. (1) Where, in an action by a broker for commissions, the owner of the land denied making any contract with the broker, the testimony of a third person that he had an offer at about the time of the making of the alleged contract with the broker to purchase from the owner on more favorable terms, was incompe- tent, in the absence of an attack on the credibility of the owner. Kelly & Orady v. Davis, 138 S. W. 1186, Tex. Civ. App. . (2) Under Civil Code, Sec. 1624, requiring a contract of em- ployment to sell land to be in writing and describing the land, where, construed as a whole, the letters claimed to constitute such a hiring, held, manifestly referred only to sales of the "T" tract, parol evidence that the employers, when using in one of them the phrase, "a fair compensation for the sale of lands, which we will now take up vigorously," had in mind and intended to describe and designate the "P" tract, inadmissible. Pronix v. Sacramento Valley Land Co., 126 P. 509, 19 Cal. App. 529. (3) In an action by a broker for damages for failure of de- fendant to carry out a contract of exchange of real estate, so as to prevent the broker from recovering a commission from the other party to the exchange, evidence of the invalidity of the con- tract was inadmissible under a pleading recognizing its validity, and alleging the refusal of defendant to carry it out, without legal excuse. Bird v. Rowell, 167 S. W. 1172, 180 Mo. App. 421. (4) In an action for commissions for purchase of realty, where the averment of the plaintiff was that plaintiff was employed by the owner to procure a sale, and that defendant agreed that if plaintiff gave him information as to property defendant desired to purchase, he would purchase only through plaintiff as broker, so as to enable him to earn a commission from the seller, but that defendant bought, without informing the seller that plaintiff brought about the sale, so as to cause him to lose a commission from the seller, evidence that defendant's agreement was, that if plaintiff should not receive a commission from the seller on prop- erty purchased by defendant, the latter would pay it, went to es- 688 AMERICAN LAW REAL ESTATE AGENCY. tablish an entirely different contract, and was not admissible. Silvert v. Kemmel, 122 N. Y. Sup. 846, 138 App. Div. 229. (5) Where it was not pleaded that the commission was to be paid out of the first crop, evidence that the first crop was a fail- ure; held, properly excluded. Price v. Partridge, 139 P. 34, 78 Wash. 362. (6) In an action by broker for commissions for procuring a purchaser pursuant to a contract, evidence of what the broker had done under a prior contract with another person, held incompe- tent. Moore v. Moss, 175 S. W. 1195, 117 Ark. 593. (7) In an action to recover a broker's compensation, evidence offered by defendant as to the amount she had expended to per- fect the title and to pay interest on mortgage; held incompetent, where the written agreement between the parties provided that defendant should bear these expenses. Watson v. Vollentine, 183 111. App. 559. (8) In an action for procuring Z. as purchaser of property, evidence by the attorney who prepared the contract of sale to Z. that another was substituted as seller instead of the original owner, for whom plaintiff acted, in order to avoid two commis- sions out of it, so the other fellow could not go in for a commis- sion; held inadmissible. Boomer v. Stuber, 145 N". W. 936, 164 Iowa, 309. (9) Defendant may not show a contract he made with another broker for the sale of defendant's farm, as evidence that his con- tract with plaintiff was like it, and not as claimed by plaintiff. Stoner v. Nail, 150 S. W. 648, 150 Ky. 511, mod. opin. on re., 148 S. W. 8, 149 Ky. 124. (10) In an action by brokers for commission, on the theory that, under their contract, they were entitled to it though the sale was made by the owner, evidence of efforts made by them to sell and expenses incurred by them in so doing, is inadmissible. Bomar v. Munn, 158 S. W. 1186, Tex. Civ. App. . (11) In a broker's action for compensation, evidence of the purchaser's statement that the broker had abandoned any effort to sell to him and purposely negotiated directly with the owner; held, inadmissible to show the owners could have sold. White v. Holman, 180 S. W. 286, Tex. Civ. App. . PLEADINGS, PBACTICB, ETC. 689 (12) Evidence that sometime after defendant listed property with plaintiffs for sale a third party authorized plaintiff's vice- president to sell for a certain price, and to have all over that price as commission; held, erroneously admitted. Cardozo v. Middle Atlantic Em. Co., 82 S. E. 80, 116 Va. 342. (13) In a broker's action for commission, defendant's testi- mony that he made the sale because in need of money was prop- erly excluded. Paries v. Sullivan, 152 S. W. 704, Tex. Civ. App. . (14) Where the solvency of the purchasers procured by plain- tiff was not in issue, and the defendant owner by accepting them and signing the contract waived any objections to their solvency, evidence that they did not return any property for taxation was properly excluded as immaterial. Swift v. Moore, 82 S. E. 914, 15 Ga. App. 254. (15) In a broker's action for commission for procuring a ten- ant, in which the complaint alleged that the plaintiff procured a tenant able and willing to carry out his agreement, and erect a twelve-story building, evidence of negotiations by the prospective tenant for the erection of a 15^ or 16-story building was not ad- missible. Herron v. Cameron, 128 N. Y. Sup. 871, 144 App. Div. 43. (16) In an action for brokerage commission, rejection of evi- dence of the actual value of the property taken by defendant in exchange; held, not error, where the parties put a value on the property in making the trade. Waddell v. Noser, 188 111. App. 302. (17) What plaintiff said in regard to the farm before his em- ployment to sell it is inadmissible. Stoner v. Nail, 150 S. W. 648, 150 Ky. 511, mod. opin. on re., 148 S. W. 8, 149 Ky. 124. (18. Testimony of the principal that sometime after the date of the alleged binding agreement between himself and the cus- tomers procured by the broker, he had made a proposition to a third person which was less favorable to him than the one which it was claimed he had declined to make or had voided when made, was not competent against the broker. Hutchinson v. Plant, 105 N. E. 1017, 218 Mass. 148. (19) In an action to recover for services in securing a tenant for hotel property and in procuring a bond from such tenant to 690 AMERICAN LAW HEAL ESTATE AGENCY. secure the payment of the rent, evidence offered by defendant tending to show that after the lease was procured plaintiff loaned the tenant money to inaugurate and carry on his business, was properly excluded, as it related to a matter arising after the exe- cution of the lease and the completion of the contract involved in the action. Eutz v. Obear, 115 P. 67, 15 Cal. App. 435. (20) On an issue as to the amount contracted to be paid for commission for the sale of land, each party testified to a different agreement, but differing as to the amount, evidence that a third party, at some indefinite time, had an agreement for a commis- sion, charged less than that claimed by one party and greater than that claimed by the other, is inadmissible. McVey v. Coates, 130 P. 661, 89 Kan. 135. (21) In broker's action for commission, evidence to show that defendant sought to vary the terms of written agreement between the parties, by making it applicable only to sell to railroad, was not admissible. Freeman v. Van Wageman, 101 A. 55, N. J. Sup. . (22) In an action by a broker for commissions, evidence that the officers of the purchaser and the seller of the property were not on speaking terms, and that an officer of the purchaser, in talking with the seller about the purchase, pocketed a slip of paper with the price of the property marked thereon, which the broker had received from the seller and had given to one officer of the purchaser, was given by the officer to another officer of the purchaser; held inadmissible. Jester v. Lee, 200 111. App. 183. (23) Where, in action for defendant's breach of contract made through a broker, defendant was estopped to deny authority of broker, evidence tending to discredit broker's authority was im- properly received. Portsmouth Oil Eefining Co. v. Madrid Cot- ton Oil Co., 77 S. 8, Ala. Sup. . (24) Correspondence between loan broker and mortgagee who had paid the amount of the mortgage to broker, when he did not have possession of mortgage, but had transferred it to his undis- closed principal; held, inadmissible to show he was a broker and the undisclosed principal. Bailey v. Walters, 202 111. App. 422. (25) In a broker's action for commission on sale of a farm, where defendant owner did not claim that certain other brokers had anything to do with the sale, testimony of one of such brokers PLEADINGS, PRACTICE, ETC. 691 as to whether or not he had had the farm in question for sale, and whether he had had it on conditions, and with knowledge that another broker also had it for sale; held, inadmissible to show no exclusive agency was given plaintiff broker. Thomas v. Wychoff, 174 N. W. 26, Iowa Sup. . (26) In a broker's action for commission, evidence of transac- tion between purchaser and prospective purchaser whom the bro- ker had previously introduced to owner, was inadmissible to prove purchaser was procured by broker. Low v. Peddock, 220 S. W. 969, Mo. App. . CHAPTER XI. EVIDENCE IMMATERIAL AND IRRELEVANT. Sec. 784. Fact that defendant had other agents not instru- mental in effecting sale. In an action for commissions for procuring a purchaser for land, the fact that defendant had other agents is immaterial, it not being contended that they had been instrumental in bringing about the sale. Rounds v. Alee, 116 Iowa, 345, 89 N. W. 1098; Goin v. Hess, 102 Iowa, 140, 71 N. W. 218; 0. L. & E. J. Gross v. Tillinghast, 86 A. 721, 35 E. I. 298. Sec. 785. In an action for commissions, right of vendor to convey or value of property. Where a broker employed to purchase specific property at a fixed price had brought suit against his principal for com- missions, and the latter refused to accept the deed, the ven- dor's right to convey, or the actual value of the property, were held not to be essential matters of inquiry, where the broker had acted in good faith. Wheeler v. Knaggs, 8 Ohio, 169. Sec. 786. In action for commissions, that broker exceeded au- thority by making- a contract of sale. Where defendant employed real estate brokers to find a pur- chaser for lands, the fact that they exceeded their authority by making a contract of sale is not material in an action to recover their commissions. Fiske v. Soule, 87 Cal. 313, 25 P. 430. Sec. 787. In action against agent for fraud, whether pre- tended borrower shared the money. A recovery in an action by the principal against the broker for fraudulent representations that the worthless property on 692 PLEADINGS, PRACTICE, ETC. 693 Which the loan was made was good security, is not affected by the question whether he shared the money with or delivered any part of it to the pretended borrower. Rubens v. Mead, 121 Cal. 17, 53 P. 432. Sec. 788. Whether the contract was signed before or after contract for exchange was signed. In an action by a broker to recover commissions on an ex- change of property effected by him, whether the written agree- ment by the plaintiff to wait for his commissions until title closed was signed before or after the signing of the contract of exchange was immaterial, where all the terms of the writ- ten contract of exchange were fully agreed on on the preced- ing day, the subsequent agreement to wait for the accrued com- missions being unsupported by a consideration. Hough v. Baldwin, 99 N. Y. S. 545, 50 Misc. 546. See also Sec. 19. Sec. 789. Where broker finds purchaser, the reasonableness of the time. Where the broker finds a purchaser at the seller's terms, while still employed, the reasonableness of the time which he has taken to do so is immaterial. Moore v. Boehm, 91 N. Y. S. 125, 45 Misc. 622. Sec. 790. In an action for selling a title bond, attempt by seller to show broker part owner of premises. A bond was given by A. to convey a lot of land at a price named per square foot, the bond was assigned to B., who em- ployed C. to find a purchaser for the land, agreeing to pay him all he could get over the price named in the bond; C. sold the land at a higher price to D., and A., at the request of B., conveyed the land; in a suit brought by C. against B. to re- cover the excess over the price named in the bond, B. offered to show that C., at the time of his employment as agent was interested in the land as owner or part owner, and did not dis- close this fact to him, and contended that the sale of the land was a fraud upon him. Held, that the question of such owner- ship was immaterial. Durgin v. Somers, 117 Mass. 55. 694 AMERICAN LAW HEAL ESTATE AGENCY. Sec. 790a. Evidence that party other than defendant owned bonds held immaterial. In a case by one engaged to sell bonds on a commission, evi- dence that a person other than defendant owned the bonds was immaterial, it appearing that the defendant had made the con- tract of employment. Ely v. Wilde, 122 P. 1022, 62 Or. 111. Sec. 791. On agreement to share commissions evidence that plaintiff tried to sell. Where plaintiff authorized defendant to se 1 ! property for which plaintiff was agent, the profits to be divided equally be- tween them, but did not transfer the exclusive agency to de- fendant, an attempt on plaintiff's part to effect a sale to de- fendant's customer was not inconsistent with his contract with defendant, and evidence thereof was immaterial in an action by the plaintiff to recover his share of the profits on a sale made by defendant. Madler v. Pozorski, 124 Wis. 477, 102 N. W. 892; Duff & Conger v. MaMey, 175 N. Y. Sup. Sec. 791a. Evidence as to how long agent had known prop- erty prior to sale was immaterial. Where, in an action by a broker for commissions for pro- curing a purchaser, it was not claimed that an agent of the purchaser learned that the property was for sale until after the broker had visited the purchaser, evidence as to how long the agent had known the property prior to the time of sale was immaterial. Benedict v. Dakin (111. Sup. '09), 90 N. E. 712. Sec. 792. That broker failed to impart the name of the pur- chaser. Where, in an action on a contract for a division of a bro- ker's profits, there was evidence that defendant sold the prop- erty to a purchaser procured by plaintiff, in accordance with the contract between them for a division of commissions, and that, at the time of the sale defendant knew that plaintiff had procured a purchaser, it was immaterial that plaintiff failed to impart to defendant, prior to the sale, the name of the per- PLEADINGS, PRACTICE, ETC. 695 son with whom plaintiff had been negotiating, and to whom the property was subsequently sold. McCleary v. Willis, 35 Wash. 676, 77 P. 1073. See also Sees. 487, 525. Sec. 793. Where contract must be in writing 1 , to allege de- fendant received benefits. Where the petition, in an action by a real estate agent to recover commissions, fails to show a written contract, as re- quired by statute, the fact that the plaintiff alleges that de- fendant received the benefit of his services, and therefore can not be relieved of his liability to pay for the same is imma- terial. Covey v. Henry, 71 Neb. 118, 98 N. W. 434. Sec. 794. In an action for commissions for purchasing, amount paid broker by vendor. In an action by a broker for commissions in purchasing lands for defendants, defendants having introduced the vendor as a witness, and he having testified that he paid commissions to such broker for effecting the sale, it was not error to exclude evidence of the amount paid by him, it being immaterial. Lindt v. Schlitz Brewing Co., 113 Iowa, 200, 84 N. W. 1059. Sec. 795. Where averred that trade was made by D., whether he received compensation. Where plaintiffs claim they effected an exchange of defend- ant's property, and defendants assert that the trade was brought about by D., the question whether D. had received compensation for his services was properly excluded as imma- terial. Creager v. Johnson, 114 Iowa, 249, 86 N. W. 275; Sewell v. Cottison, 108 N. Y. S. 25, 123 App. Div. 586 Sec. 796. In an action for the value of personalty for effecting an exchange of land, value of the latter. In an action for the value of personalty, which plaintiff was to receive for effecting an exchange of land of defendant for a store property, and which plaintiff had not received because defendant refused to complete the trade, evidence as to the value of the land was properly excluded as immaterial. Distad v. Shanklin, 15 S. D. 507, 90 N. W. 151. 696 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 797. Where owner ratified sale by attorney, whether he knew all the terms. Where one authorizes an attorney in fact, by power duly signed and acknowledged, to make a certain contract for the purchase of land with certain parties and of a certain date, and subsequently ratifies the action of his attorney, it is im- material whether he knew all the terms and conditions of the contract at the time it was made, and he will be bound by the contract made by such attorney. Rank v. Garvey, 66 Neb. 767, 92 N. W. 1025, 99 N. W. 666. Sec. 798. In an action against a broker to account for part of the price, the value of the property. Where, in an action against a broker for failure to account for a part of the price received by him, the issue was, whether the broker sold the land to the purchaser through a third per- son, as his agent, or whether he sold it to a third person who resold it to the purchaser, evidence of the value of the prop- erty at the time of the sale was immaterial. Buchanan v. Randall (S. D. Sup. '06), 109 N. W. 513. Sec. 79 8a. That owner sold to broker's customer for less price was immaterial. Where owner sells to a customer at a price lower than offered to same customer procured by broker, good faith of the owner is immaterial, when it appears that owner was led to believe that he was dealing with a new party. Stone v. Kreis, 202 111. App. 43. Sec. 799. Where an owner sold to a customer, broker could recover although he failed to notify the owner. Where an owner of standing timber, after employing plain- tiff to sell the same, sold it himself to a purchaser procured by plaintiff, it was immaterial to plaintiff's right to recover for the services, that the owner was not guilty of fraud in re- lation to such sale, or that he should have had previous knowl- edge that the purchaser had been induced to buy through plain- tiff's efforts. McDonald v. Cabiness, 100 Texas, 615, 98 S. W. 943, affirmed 102 S. W. 721. Compare Nance v. Smyth, 118 PLEADINGS, PHACTICE, ETC. 697 Tenn. 349, 99 S. W. 698; Quist v. Goodfellow, 99 Minn. 509, 110 1ST. W. 65; McLaughlin v. Campbell (N. J. Err. & App. '09), 74 A. 50. Compare Sec. 471. See also Sec. 1009. Sec. 799a. In order to be entitled to recover commissions it was immaterial whether the broker was the agent. Where the owners expressly agreed that the broker should have a commission in case of a sale to his customer, it is im- material, as regards his right to commissions, that he was not their agent. Lawler v. Armstrong (Wash. Sup. '09), 102 P. 775. Sec. 799b. Brokers negotiating an exchange not bound to in- form one of the parties of his employment by the other. Brokers negotiating an exchange of properties being middle- men held not bound to inform one of the parties of their em- ployment by the other. Marks v. O'Donnell, 121 N. Y. S. 214. See Sec. 578. Sec. 800. Where the evidence is silent as to the broker making previous sales, whether he had a license. Where the evidence is silent as to whether a broker was en- gaged in the real estate business, or had made previous sales, it is immaterial whether or not he had a license at the time of the sale in question. Packer v. Sheppa/rd, 127 111. App. 598. See also Sec. 576. Sec. 801. In an action by a broker for fee for purchasing, right of vendor to convey and value of the land. Where a broker employed to purchase specific property at a fixed price brought suit against his principal for commissions, on the latter refusing to accept a deed therefor the vendor's right to convey, or the actual value of the property, were held not to be essential matters of inquiry, where the broker had acted in good faith. Wheeler v. Knaggs, 8 Ohio, 169. Sec. 801a. Whether or not the party to be charged with the commission is the owner of the land is immaterial. The right of a broker to recover a commission for making a sale of land is purely a nmtter of contract; and where a valid 698 AMERICAN LAW EEAL ESTATE AGENCY. contract in writing has been made, it is immaterial whether or not the party to be charged is the owner of the land. San- chez v. Yorba, 8 Cal. App. 490, 97 P. 205. Sec. 802. Evidence that after revocation broker produced a responsible purchaser. Where an agent's authority to sell his principal's land has been revoked, whether the agent afterwards actually secured a purchaser ready and able to buy the land on the principal's terms was immaterial, in an action for damages for the revoca- tion, unless on the issue of damages. Mulligan v. Owens, 123 Iowa, 285, 98 N. W. 792. Sec. 802a. Evidence that owner sold for a less price than fixed in agreement with broker was inadmissible. In an action for commissions for producing a purchaser ready, willing and able to buy on the terms prescribed, evidence that the owner sold for a less price than that fixed by the agreement with the broker was not admissible. Justy v. Erro, 117 P. 575, 16 Cal. App. 519. Sec. 803. Whether the agent was to secure a purchaser or make a sale, where owner would not consummate. Whether real estate agents were to secure a purchaser or make a sale themselves is immaterial, where the owner, by his conduct, rendered it impossible for them to consummate the sale. Church v. Dunham, 14 Idaho, 776, 96 P. 203, 205. Sec. 803a. Letter between third parties immaterial. In an action by a real estate broker to recover viommissions for services in effecting an exchange of lands, which was finally completed by other brokers, a letter from one of these other brokers to another of them, offered by the defendant merely as a part of the history of the transactions which culminated in the sale, may be excluded as immaterial as well as being PLEADINGS, PRACTICE, ETC. 699 res inter olios. Hall v. Grace, 179 Mass. 400, 60 N. E. 932; Cessna v. Johnson, 122 N. E. 444, Mass. Sup. . Sec. 804. Statement by defendant that if he had had his own way he would have sold when he had a chance. In an action for commissions for procuring a purchaser of land, a conversation between defendant and the broker, sev- eral months after the contract was entered into between them, in which defendant stated that if he had had his own way he would have sold his land when he had a chance to, was irrelevant and immaterial. Ewing v. Lunn (S. D. Sup. '08), 115 N. W. 527. Sec. 805. In a suit to recover deposit money, evidence of sub- sequent contract irrelevant. An agent sold a tract of land subject to the ratification of his principal, with an agreement that, if not ratified, he would refund to the purchaser the money paid by him ; the principal refused to ratify. In a suit brought by the purchaser for the money so paid by him Held, that evidence of a subsequent contract between the parties was irrelevant, unless it was pro- posed to show that in making such subsequent contract the matter of the money to be refunded under the first contract was in some way adjusted. Evans v. George, 80 111. 51. Sec. 805a. Judgment stricken out as irrelevant. A judgment in favor of the purchaser against the vendor rescinding the contract for fraud, is not res judicata as to the vendor's broker, so as to entitle him to plead it in a suit for his commission, and an allegation setting up the judgment should be stricken out as irrelevant. Polak v. Rosenzweig tiealty Co., 116 N. Y. S. 38. Sec. 805b. Bringing of prior suit covering part of claim in question held immaterial. Where plaintiff, in an action for broker's services, pleaded the bringing of a prior suit against F. for $900, covering a part of the claim in question, the bill of particulars filed in such suit, 700 AMERICAN LAW HEAL ESTATE AGENCY. showing the specific items of the charge, was immaterial. Dai- berg v. Jung Brewing Co., 144 N. W. 198, 155 Wis. 185. Sec. 806. In action to recover from an agent part of price, influence of defendant over vendor. In an action by vendees against the agents who made the sale to recover that part of the price retained by them, with- out plaintiff's knowledge, the issue being whether defendants were the agents of plaintiffs or of the vendor, proof of the value of the property sold is competent to explain the motive of the parties to the contract, and evidence that the action was not begun until after the defendants had dissolved partner- ship and become their business rival is also competent; but evidence as to the motives of the vendor and defendants' influ- ence over him, is irrelevant. Duryea v. Vosburgh, 1 N. Y. S. 833. Sec. 807. Evidence that defendant had employed another broker who tried to sell. Defendant's evidence, in an action by a real estate broker for commissions, that defendant had employed another broker who attempted to dispose of the land to a purchaser, and who had obtained his information from plaintiff, is rightly excluded as irrelevant. Adams v. McLaughlin, 159 Ind. 23 64 N. E. 462. Sec. 808. In a suit for share of fees, answer alleging broker worked in opposition. Plaintiff alleged that he was authorized by the owners to sell land, and that he agreed to divide the commissions with defendant, if the latter would find a purchaser; that defend- ant recovered of the owners the commissions on a sale of the land, but refused to pay plaintiff his share; defendant al- leged that during the negotiations for the sale of the land, plaintiff worked in opposition to defendant, and endeavored to make a sale to other parties, and that plaintiff was thereby estopped from claiming that he was jointly interested with de- fendant in selling the land. Held, that the plea was irrelevant and properly stricken, there being nothing in the case to indi- PLEADINGS, PEACTICE, ETC. 701 cate that plaintiff was not entitled to find a purchaser himself. Wefel v. Sttilman, 151 Ala. 249, 44 S. 203. Sec. 809. In an action for fee for clearing title, evidence of commissions for selling property. In an action by a real estate dealer to recover on an ex- press contract whereby defendant agreed to pay him a certain percentage of the proceeds of sales, in consideration of services to be rendered in clearing the title to and putting property in marketable condition to effect a sale, evidence as to the customary commissions for making sales of property is irrele- vant. Jefferson v. Burham, 85 Fed. 949, 29 C. C. A. 481. Sec. 809a. Conversation not in presence of defendant irrel- evant. Plaintiff alleged a verbal contract by which he was to ob- tain for defendant the title of co-owners of a mining claim for not more than a certain sum, his commission to be the difference between that sum and the price asked. Defendant alleged that unless a certain sale of property which he was ne- gotiating was effected, plaintiff was to have nothing for his services, and that the sale was not effected. Held, that evi- dence of what a witness, who was in no way connected with defendant and was not present at the conversation during which the contract was made, stated to plaintiff about his un- derstanding with defendant before plaintiff went to see de- fendant, was irrelevant. Huntoon v. Lloyd, 8 Mont. 283. Sec. 809b. Advice of third person to purchaser held to be im- material on issue of procuring cause of sale. On the issue whether a broker employed to procure a pur- chaser was the procuring cause of the sale, evidence that the purchaser sought the counsel of a third person, and resolved not to purchase unless the third person approved thereof, was immaterial. Oliver v. Katz, 131 Wis. 409, 111 N. W. 509. 702 AMERICAN LAW REAL ESTATE AGENCY. Sec. 809c. Immaterial and irrelevant evidence. (1) The question whether defendant's demand for immediate payment was reasonable is immaterial, in the absence of fulfill- ment by plaintiff of all other conditions on the original contract. Wittever v. Hurwitz, 110 K E. 433, 216 N. Y. 259, rev. judg., 143 N. Y. Supp. 1150, 158 App. Div. 890, re. den., 112 N. E. 1079, 217 N". Y. 666. (2) In a broker's action to recover compensation for obtaining a purchaser for an option on certain land, evidence as to dealing between defendant and the landowner, held immaterial. 0. W. Eerr Co. v. Corry, 211 P. 647, 128 C. C. A. 151. (3) In an action on a note given to a broker for commissions in negotiating an exchange of property, evidence of the rentals of the property acquired by defendant in the exchange is immaterial. Cervenka v. Hunter, 185 111. App. 547. (4) In an action to recover broker's commission for finding a tenant for defendant, refusal to permit defendant to testify to the amount of rental he was paying; held, not error, for the reason that the evidence sought to be elicited had little bearing on the issues involved. Staff v. Steiger, 180 111. App. 43. (5) Whether principal, at time of sale, had any idea that the broker had any claim for commission, held immaterial. Howard v. Street, 93 A. 923, 125 Md. 289. (6) In an action for commission for negotiating a sale of property, evidence as to whether the purchaser was the owner of any property in a certain section was immaterial. Clark v. Bon- ner, 104 N. E. 494, 217 Mass. 201. (7) In an action for broker's commission, evidence as to time and money expended in finding a purchaser; held irrelevant, where no show of a break in completion of the trade was made. Newman v. Dunleavy, 149 P. 970, 51 Mont. 149. (8) A broker suing on a contract for commissions on sale of real estate, without restrictions, may not show that the owner subsequently executed a deed, without restrictions, to prove the contract alleged. Greene v. Agnew, 151 N. W. 268, 160 Wis. 224. (9) Where broker claimed that he was to have all received upon the sale over $4,500, evidence that defendant had previously listed farm for sale at $4,500, and that it was worth only $3,500 ; PLEADINGS, PRACTICE, ETC. 703 held, improperly admitted. Williams v. Otto, 148 N. W. 367, 181 Mich. 657. (10) A letter from the purchaser to defendant's attorneys con- taining proposition for reselling, and stating that the salesman of the plaintiff broker made certain representations concerning the property; held, properly excluded as irrelevant. Swift v. Moore, 82 S. E. 914, 15 Ga. App. 254. (11) In an action against principal for a commission on sale of realty, letters from prospective purchaser to his attorney, stat- ing that he did not desire to close trade with defendant unless he acquired an adjoining tract; held irrelevant. Stout v. Thornhill, 79 S. 154, Ala. App. . CHAPTER XII. EVIDENCE IN GENERAL. Sec. 810. Dissuasion Evidence that failed to prove. On the issue whether the owner during the continuance of an option given by him to a broker on certain real estate dis- suaded a probable customer of the option holder from pur- chasing from him, evidence that the owner and the customer had several interviews, and after the termination of the op- tion entered into a contract to accept the land, does not prove dissuasion on the part of the owner. Smith v. Lawrence, 98 Me. 92, 56 A. 455. Sec. 811. Whether or not agent was a regular broker does not affect the value of his services. Whether or not an agent employed to sell a piece of land is a regular broker, does not affect the competency of evi- dence as to the price which would be paid a broker for such services, and offered for the purpose of showing what the agent's services were worth. Hollis v. Weston, 156 Mass. 357, 31 N. E. 483. Sec. 812. In an action for procuring lessee, defendant might show that lease was never made. Plaintiffs, real estate agents, were to receive certain com- missions for services in securing a lessee for defendant upon agreed terms, and they procured an informal agreement for a lease to be signed by defendant and the applicant for the lease. Held, that defendant might show by parol that the con- tract was merely provisional, and did not express all the terms of the lease to be entered into by the parties, as was also un- derstood by plaintiffs, and that the lease was never consum- mated, as no final agreement was ever made between defend- 704 PLEADINGS, PRACTICE, ETC. 706 ant and the lessee. Buxton v. Seal, 49 Minn. 230, 51 N. W. 918. See also Sec. 427. Sec. 813. Real estate man long a resident of the town com- petent to testify as to the value of property. A real estate man who has long resided in i eertain town and has property listed on his books in a certain addition, is competent to testify as to the value of property in that addi- tion. Eyan v. K. C., etc., R. Co., Ill Mo. 456, 20 S. W. 234. Sec. 814. Evidence properly excluded that broker, three years after the sale, became partner of purchaser. In an action brought by B., an agent, to recover compensa- tion from R. for services in selling real estate of the latter, the defendant pleaded the general issue, and that at the time of the sale B. was interested as a partner of the purchaser procured; B. admitted that he had acquired an interest in the property after the sale, but denied that he had an interest in it at the time of the sale; and on the trial below R. offered evidence with respect to the price received by B. for his interest in the property at the sale thereof made by the latter three years after the sale for which compensation was claimed in the suit; the evidence was offered for the purpose of showing that B. was, at the time of the last mentioned sale, a partner in the purchase made thereat. Held, that the exclusion of the testimony was not error. Ruckman v. Bergholz, 38 N. J. L. 531. Sec. 815. Evidence that buyer did not have cash but able to obtain by next day, able to buy. Where the written contract by which defendant employed plaintiff as broker to sell lands fixed the selling price per acre, and provided for the payment of a certain sum in cash by any purchaser obtained, evidence that the purchaser obtained by plaintiff under the offer to buy at the price named in the con- tract did not have in his possession at the time of the offer sufficient funds to make the cash payment required, but could have obtained them on the morning of the next day, was suffi- cient to show that he was able to buy. McDermott v. Mahoney, 706 AMERICAN LAW REAL ESTATE AGENCY. 139 Iowa, 292, 106 N. W. 925, affirmed 115 N. W. 32. See also Sec. 464. Sec. 816. Witnesses for defendant may be questioned as to the interest purchasers had in the land. In an action on account for commissions transferred to plaintiff, a witness for defendant may be questioned as to the interest the purchasers had in the land, and as to what in- duced defendant to make the sale, such questions being perti- nent to matters introduced by plaintiff. Ivy Coal & Coke Co. v. Long, 139 Ala. 535, 36 S. 722. Sec. 817. In cross-examination it was proper to ask assignor about transaction. In an action on an account for commissions transferred to plaintiff, it was proper on cross-examination to question the assignor, who rendered the services, relative to the negotia- tions between the purchasers of land, the plaintiff, and him- self as to the transaction as consummated. Id. Sec. 817a. On cross-examination defendant not required to answer as to whether note had been paid. In an action for commissions for a sale of land under a con- tract alleged to have been made with defendant's agent, where there was evidence tending to show that the contract was en- tered into between the agent and defendant for an exchange of land by each, defendant agreeing to pay the agent a certain commission, the defendant testified that he settled with the agent and gave him a note for the amount before he had any knowledge that plaintiff was in any manner connected with the transaction, plaintiff could not on cross-examination, require the defendant to answer as to whether the note had been paid. Quale v. Hazel, 19 S/D. 483, 104 N. W. 215. Sec. 817b. On cross-examination defendant could show he had become surety on plaintiff's note to a bank. In an action for a real estate broker's commissions defend- ant could show, on plaintiff's cross-examination that defend- ant had become a surety on plaintiff's note to a bank, fates. PLEADINGS, PRACTICE, ETC. 707 v. Bratton (Tex. Civ. App. '08), 111 S. W. 416. See also Sec. 1047. Sec. 818. Evidence of the sale of property, to show defend- ant's good faith in refusing loan. In an action by a loan broker for commissions against a client who had refused to complete a loan after a lender had been secured, evidence that the client had sold the property to supply him with the needed funds, is admissible as bearing on the credibility of his testimony that he had refused the loan because an existing mortgage could not be paid off be- fore maturity. Payne v. Williams, 178 N. Y. 589, 70 N. E. 1104. Sec. 818a. Acts of purchaser admissible on question of good faith. While the acts of a purchaser procured by a broker em- ployed to obtain a purchaser subsequent to the time fixed for the performance of the contract can not affect the rights of the broker to his commissions, such acts may be looked to to determine whether what the purchaser did to establish the bro- ker's rights was done in good faith, and whether such prior acts had the legal effect claimed for them. Little v. Herzinger, 34 Utah, 337, 97 P. 639. Sec. 819. Defendant may show influence other agents exerted on sale. In an action for commissions, under a contract of agency for effecting a sale of real estate, the defendant, on the issue of who effected the sale, is entitled to show the influence other agents exerted on the sale before and after the contract with plaintiff. Smiley v. Bradley, 18 Colo. App. 191, 70 P. 696. Sec. 820. Evidence of dealings to establish relation of prin- cipal and agent. In an action for a real estate broker's commissions for ne- gotiating a purchase which defendant refused to consummate, evidence that before the agreement for purchase was reached plaintiff had submitted an offer to the owner as the purported 708 AMEEICAN LAW EEAL ESTATE AGENCY. agent of defendant, was admissible to show the relationship of the parties and plaintiff's offer to purchase the property for defendant. Banna v. Espalla, 148 Ala. 313, 42 S. 443. Sec. 821. Where defendant demanded return of contract, can show it referred to another transaction. Where, in an action for a broker's commissions for nego- tiating a purchase which defendant refused to consummate, there was testimony for plaintiff that defendant had demanded the return of a writing executed September 10, alleged to show a contract of employment, at the same time recognizing his obligation to pay plaintiff a commission, defendant should have been permitted to show that the paper he demanded referred to another transaction, and that at the same time plaintiff presented a statement for other commissions, not including the one sued on, and did not, prior to October 20, make demand for the sum claimed. Id. Sec. 822. Plaintiff to purchase must show seller able to con- vey a good title. Under a contract whereby defendant agreed to pay plain- tiff $100 for obtaining a sale to him of certain real property, plaintiff, in an action for the commission, must show that the person produced as such owner was willing to sell at the stated price, and able to convey a merchantable title. Anderson v. Johnson (N. D. Sup. '07), 112 N. W. 139. Compare Sec. 290. Sec. 822a, Not sufficient for broker to show that his act was only one of a chain of causes producing sale. A broker must show that his acts were the producing cause of the sale, and it is not sufficient to show that his act was merely one of a chain of causes producing the sale. F. H. & C. B. Oer- hardt R. E. Co. v. Marjonie R. E. Co., 129 S. W. 419, 144 Mo. App. 620; Grain v. Miles, 134 S. W. 52, 154 Mo. App. 338. Sec. 823. Evidence of defendant tending to show that option was only an agreement. Where, in a suit for a commission for finding a purchaser for land, plaintiff alleged that the owner listed it with bro- PLEADINGS, PRACTICE, ETC. 709 kers, who listed it with, plaintiffs firm, with the owner's con-, sent, the owner could show that shortly before the alleged list- ing with such brokers, he gave them an option to purchase a tract, including the land on account of which the commission was claimed, as tending to .corroborate the owner's claim that the option contract was the only agreement between him and! the brokers. Sterling v. De Laune (Tex. Civ. App. '07), 105 S. W. 1169. Sec. 824. Evidence of prior contract as to compensation com- petent where conflicting. In an action by a real estate broker to recover commissions, where the evidence is conflicting as to the rate of compensa- tion, evidence of a prior contract between the same parties for the sale of the same property and of the compensation therein agreed to be paid is competent. Cobb v. Dunlevie, 63 W. Va. 398, 60 S. E. 384. Sec. 825. Affirmative answer of purchaser that he was ready* etc., not objectionable as an opinion. In an action by a broker for commissions for procuring a purchaser, the affirmative answer of the purchaser procured by the broker to the question as to whether he was ready, willing and able to comply with the terms of the sale, was not objectionable as the opinion of a witness. Clark v. Wilson, 91 S. W. 627, 41 Tex. Civ App. 450. Compare N. W. Packing Co. v. Whitney (Cal. App. '07), 89 P. 981. Sec. 826. Question to assumed principal, whether her husband was acting as her agent, not objectionable. A question addressed to an assumed principal in which she is asked whether her husband was acting as her agent, is not objectionable as calling for a legal conclusion. Knapp v. Smith, 27 N. Y. 277. Sec. 827. Conversations with purchaser's agent allowable to show unwillingness of purchaser. As tending to show that plaintiff procured a purchaser for defendant's timber, he may testify as to conversations with 710 AMERICAN LAW SEAL ESTATE AGENCY. the purchaser's agent, at the appointed time and place for closing up the purchase, showing his unwillingness to buy at the stipulated terms. Obenauer v. Solomon, 151 Mich. 570, 115 N. W. 696, 15 D. L. N. 31. Sec. 828. Defendant may show another agent employed by him was the procuring cause of the sale. Where a real estate agent sues for commissions, defendant is entitled to show that the efforts of plaintiff were not the procuring cause of the sale, and to do this he may introduce evidence to the effect that the efforts of another agent em- ployed by him were the procuring cause. Mead v. Arnold, 131 Mo. App. 214, 110 S. W. 656. See also Sec. 896. Sec. 829. Defendant entitled to introduce in evidence letters on the question of plaintiff's employment. Plaintiff, in an action by a broker for commissions for the sale of an office building, who had for nine years been defend- ant's agent for handling certain real estate for him, claimed authority, never revoked, to sell the building, which defendant denied ever having been given; four years before the sale they had an agreement as to plaintiff's management of this and other property of defendant, and plaintiff wrote defendant a letter reciting that, in accordance with their conversation of that date, he thereby stated his understanding of their agree- ment as to commissions he was entitled to for the management of defendant's properties, the one in question, with another, being named, following which were the terms, the commissions, and the duties to be performed, with no statement, however, with respect to sales; defendant's letter in reply stated that plaintiff's letter was practically correct, then gave the detailed terms of the employment of plaintiff as agent, and concluded, "this arrangement is not to be considered as including a sale of the property; I reserve the right to deal direct in case of a sale." Held, that defendant was entitled to have both let- ters introduced in evidence on the question of employment, and it was not enough to admit the concluding paragraph of de- fendant's letter, it losing much of its effect when standing PLEADINGS, PRACTICE, ETC. 711 alone. Willard v. Ferguson, 110 N. Y. S. 909, 125 App. Div. 868. See also Sec. 564. Sec. 830. Proof insufficient to support recovery for the sale of a house. Defendant, in an action by a broker for commissions, as owner of two semi-detached houses, gave a broker a written authority, without date, to sell the property, without describ- ing it; defendant testified that the written authority was for the sale of the second house, and that it was given after the first house had been sold; six disinterested witnesses corrobo- rated defendant, and the purchaser of the first house testified that she never saw the broker until after she had been nego- tiating with defendant personally. Held, insufficient to sup- port a recovery of commissions for effecting a sale of the first house. Herweg v. MoUtor, 110 N. Y. S. 241, 126 App. Div. 927. Sec. 831. Any parol evidence relied on to make a binding- contract must be clear and decisive. Any parol evidence relied on to establish the authority of a broker to make a binding contract must be clear and decisive. Stengel v. Sergeant (N. J. Eq. '08), 68 A. 1106; Keim v. O'Reilly, 54 N. J. Eq. 418, 34 A. 1073 ; Spengler v. Sonnenberg, 88 0. S. 192. See also Sec. 18. Sec. 831a. Where uncertainty exists identity may be estab- lished by evidence. When the identity of a thing referred to in a written con- tract is left uncertain, it is proper to hear evidence to de- termine which one of two or more things answering the de- scription was meant by the parties. Pedbody v. Dewey, 51 111. App. 260. Sec. 832. Evidence that fell short of authorizing the agent to sign a contract of sale. After defendant had written several letters to her agent in- structing him to sell her property for a specified price, the agent wrote her that several had declined her proposition, but that he was dealing with one who would pay a price less than. 712 AMERICAN LAW EEAL ESTATE AGENCY. that specified; she wired that she would sell for a sum be- tween the specified and offered prices, if a sale could be made before a certain time; the agent sent the telegram to the third person, who replied that he would not increase his offer, ask- ing the agent to submit it again, and nothing more; this the agent did, advising the defendant to accept the offer; but she instead of accepting, wired a third price at which she would sell; finally, upon the agent's informing her that he could do no better than the price offered, she telegraphed him that she would sell for such price, but would only pay half the com- missions, and asked him to wire in case of acceptance. Held, that defendant's letters did not clearly authorize the agent to make, himself, a contract of sale binding on the principal, even on the terms given therein. Stengel v. Sergeant (N. J. Eq. '08), 68 A. 1106. Sec. 833. Oral evidence allowable to establish an independent agreement to written contract. A contract, where the owner of real estate, in order to in- duce an agent to accept a stipulated sum for his services in effecting an exchange, agreed to pay him more if the sale proved satisfactory, could be established by parol evidence aa an independent agreement, though the stipulation for payment of the first sum was in writing. Blair v. Slosson, 27 Tex. Civ. App. 403, 66 S. W. 112; Bradley v. Bower (Neb. Sup. '04), 99 N. W. 490. Sec. 833a. Contract between owner and purchaser not evi- dence that broker found purchaser. A written agreement by prospective purchasers with the owner of land to purchase it for a stated price is not suffi- cient proof, in an action by the real estate broker for his com- missions, that he procured the purchasers, since that agree- ment is conclusive only between the parties to it. Folinsbee v. Sawyer, 157 N. Y. 196, 51 N. E. 994. Sec. 833b. Court may receive evidence after motion to dis- miss petition for failure of proof has been made. After plaintiff's evidence was closed a motion to dismiss for failure of proof was continued until the following day, at PLEADINGS, PRACTICE, ETC. 713 which time plaintiff offered to show that his principal knew of the contract to divide commissions. Held, that the evidence should have been received.. Dearing v. Sears, 3 N. Y. S. 31. Sec. 833c. Evidence of contract material to determine its terms. Where the evidence was conflicting as to the terms of a bro- ker's contract, whether the contract, as claimed by the broker was harsh and unreasonable, was material only to determine the terms of the contract in fact. Lee v. Conrad (Iowa Sup. '08), 117 N. W. 1096. Sec. 833d. Broker must prove contract as pleaded, perform- ance, breach by defendant, and measure of recovery. In an action for broker's commissions, plaintiff must prove the contract as pleaded, and show performance and breach by defend- ant, and the measure of recovery, as alleged. Hill v. Dakin, 141 P. 175, 92 Kan. 650. Character of broker's relation to the transaction may be proved by direct and positive evidence, or may be inferred from facts and circumstances proved. Johnson v. Schrepferman, 119 N". E. 494, Ind. App. . Sec. 834. Declarations during the negotiations with purchaser are admissible as part of the res gestae. In an action for a broker's commissions, declarations of de- fendant's agents as to the broker's commissions, made at the time they were negotiating and closing the deal with the pur- chaser found by the broker, are admissible as part of the res gestae. Fritz v. Chicago Grain & Ele. Co., 136 Iowa, 699, 114 N. W. 193 ; Donnder Petroleum Co. v. Clay, 267 P. 45. Mechem on Ag., Sec. 715. 714 AMERICAN LAW REAL ESTATE AGENCY. Sec. 835. Declarations of owner after the sale inadmissible as part of the res gestae. In an action in interpleader when the issue between the par- ties is as to the right to commissions for the sale of real estate, the declarations of the owner of the property sold, made some time after the sale has been effected, and in the absence of defendant to the effect that he thought plaintiff was entitled to the commission, are inadmissible. Shipman v. Freeh, 3 N. Y. S. 932, 15 Daly, 151. Sec. 836. Declarations. The expression of opinions by the court as to the material- ity of evidence in ruling upon offers of testimony, are not usually proper objects of exception, but declarations or state- ments may be assumed by the court, in the presence of the jury, with respect to its weight and materiality, as to be prej- udicial and ground of exception by the aggrieved party. Haug v. Hangan, 51 Minn. 558, 53 N. W. 874. An agent's authority can not be proved by his declarations, nor by his acts done without the knowledge or authority of his principal. Whit- ney v. Lake, 91 Pa. St. 349; Eastla-nd v. Maney, 36 Tex. Civ. App. 147, 81 S. W. 574; Ehrenworth v. Putnam (Tex. Civ. App. 1900), 55 S. W. 190. A person, not in actual possession but authorized to sell, is a mere broker, and his declarations can not be admitted to affect the title of his principal. Pier v. Duff, 63 Pa. St. 59. In an action for deceit arising out of an exchange of properties through a broker acting for de- fendant, evidence that defendant stated that his broker had made a mean trade for him, and that he had made a poor trade, warrants a finding that such broker was acting for de- fendant in effecting the exchange. Arnold v. Teal, 182 Mass. 1, 64 N. E. 413. The question of whether a broker employed to procure a purchaser was the efficient cause of the sale, or whether the means employed by him and his efforts resulted in a sale, must be deduced from the facts relating to the transaction, and not from the conclusion of a witness. Geiger v. Kiser (Colo. Sup. '10), 107 P. 267. PLEADINGS, PRACTICE, ETC. 715 Sec. 837. Self-serving declarations inadmissible as evidence. In an action for commissions by a real estate broker on a contract under which it had earned its commissions, where the contract of sale was signed, defendant's self-serving declara- tion that the payment of commissions was to await the de- livery of the deeds was of no effect. Dike v. Hadght, 108 N. Y. S. 1066. In an action for a broker's commissions, a state- ment by plaintiff as to a sale of the land, and what he would be entitled to, was self-serving and inadmissible. Leutschner v. Patrick (Tex. Civ. App. '07), 103 S. W. 664. In an action for commissions for the sale of defendant's land, testimony of plaintiff that he expected to be paid for the alleged services was properly excluded. Lotto, v. Lockman, 139 Iowa, 626, 117 N. W. 962. Sec. 838. Admissions against interest. In an action by a real estate broker for commissions, defend- ant's admission that plaintiff procured the sale, as appears in the contract between the vendor and purchaser, was evidence for the plaintiff. Dike v. Hadght, 108 N. Y. S. 1066. Where, in an action by a broker for commissions on a sale of real estate, defendant's answer admitted the employment of plaintiff as a broker, and it appeared that the contract of exchange of properties negotiated by plaintiff was signed through his efforts, these facts took the case out of the purview of the Penal Act making it a misdemeanor for one to offer real estate for sale without written authority. Hough v. Bald- win, 99 N. Y. S. 545, 50 Misc. 546. In a broker's action for compensation, declarations against interest by one who would share in the broker's commissions, and was therefore beneficially interested in the result of the ac- tion, were admissible in evidence. Kinncme v. Conroy (Wash. Sup. '09), 101 P. 223. 716 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 838a. Long lapse of time in bringing suit circumstance bearing on the weight of evidence. Where nearly six years had elapsed before suit brought for broker's services, but limitations had not run, such lapse of time may be considered as bearing on the weight of the evidence. Dai- berg v. Jung Brewing Co., 144 N. W. 198, 155 Wis. 185. Sec. 838b. Evidence that failed to establish that minds of parties met on amount of broker's commission. In a broker's action for commission involving issue whether owners had by express contract agreed to pay a certain commis- sion, telegram by prospective purchaser to owners stating commis- sion wanted by broker; held competent, in view of undisputed evidence that broker had not advised such prospective purchaser as to commission he was expecting, to establish amount of commis- sion that owner had in mind, and that minds of parties never met on amount claimed by broker. Parker v. lAndsey, 176 N". W. 1018, S. D. Sup. . CHAPTER XIII. ESTOPPELS. Sec. 839. Estoppel by representations or conduct. One may be estopped by his representations or conduct from repudiating a transaction. Christensen v. Wooley, 41 Mo. App. 53 ; Dutcher v. Empire League, 113 N". Y. S. 1083 ; Fonch v. Wil- son, 59 Ind. 13; Elsea v. Fassler, 154 P. 1067, 29 Gal. App. 187; McKiblin v. Wilson, 182 P. 638, Kan. Sup. ; Thornhill v. Masurca, 216 S. W. 810, Mo. App. ; Goodwin v. Riddle, 85 S. 433, Ala. Sup. ; De la Cuesta v. Armstrong Holding Co., 192 P. 135, Cal. App. ; Greeriberg v. SchwinsU, 179 N. W. 234, Mich. Sup. . Sec. 840. Objecting on one ground estopped to set up another. Where defendant authorized a broker to sell certain lots for $1,800 cash, and the broker sold for $50 cash, and the re- mainder on delivery of the deed and abstract, but defendant refused to complete the sale, claiming that the authorization was $1,800 net to him, without deduction of the broker's commis- sions, the defendant was estopped subsequently to assert, in an action brought by the broker to recover compensation for his services, that he was not bound to pay the broker, because the sale did not comply with his instructions as to payment of price. Donley v. Porter, 119 Iowa, 542, 93 N. W. 574; Mooney v. Elder, 56 N. Y. 238; Railway Co. v. McCarthy, 96 U. S. 258, 2J37; Fuller v. Brady, 22 HI. App. 174; Fiske v. Sirile, 87 Cal. 313, 25 P. 430; Grouse v. Rhodes, 50 HI. App. 120; Johnson v. Wright, 124 Iowa, 61, 99 N. W. 103; Lettiere v. BlacJcman, 187 111. App. 336; Johnson v. Stewart & Hay Bdg. Co., 153 S. W. 511, 171 Mo. App. 543; Braniff v. Baier, 165 P. 816, 101 Kan. 117. See also Sec. 246. In other jurisdictions it is held that unless the broker has suf- fered injury by reason of the defendant not objecting at the time 717 718 AMERICAN LAW EEAL ESTATE AGENCY. upon the ground subsequently sought to be asserted, the defendant may still avail himself of the defense. The List & Son Co. v. Chase, 80 0. St. 42; Peters v. Anderson, 88 Va. 1051, 14 S. E. 974; Provident Tr. Co. v. DarraugJi, 168 Ind. 29, 78 K E. 1030; Stearns v. Jennings, 128 Wis. 379, 107 N. W. 327, 17 Am. & Eng. Ann. Gas. 63, 64; Perry v. Mt. Hope Iron Co., 16 R. I. 318, 51 A. 87. Defendant, who contracted to pay plaintiff a certain amount brokers' commissions if plaintiff would buy for him the coal on a certain farm, is not estopped to assert, as against plain- tiff's claim for commissions, that one of the owners was an infant, so that a binding contract for the sale of all the coal which was contemplated was not obtained; he not having em- ployed plaintiff with knowledge of the infancy of such owner, though he had not based his refusal to carry out the contract of purchase on such infancy. Mitchell v. Weddington (Ky. Ct. App. '09), 122 S. W. 802. Sec. 841. Owners estopped to claim that because they refused to carry out agreement there was no sale. "Where the owners of real estate agreed to sell to a purchaser procured by their broker, and the purchaser paid $10 of the price, the owners were estopped, when sued for commissions for making the sale to assert that because they subsequently refused to carry out their agreement there was no sale. Gwin- nup v. Sibert, 106 Mo. App. 709, 80 S. W. 589. See also Sec. 861. Sec. 842. After acceptance of purchaser owner can not object to pay broker on account of purchaser's inability to pay for the property. One who employs a broker to negotiate a sale can not, in an action for the commissions, avail himself of the objection that the customer is unable to pay for the premises, if the vendor has accepted the customer as satisfactory, and has con- veyed the premises to him. Travis v. Graham, 48 N. Y. S. PLEADINGS, PRACTICE, ETC. 719 736, 23 App. Div. 214; Ford v. Perkins, 162 111. App. 176; Davis v. Paular, 170 111. App. 317 ; Wood & Tatum Co. v. Busier, 173 P. 1109, Cal. App. ; Wolfmon v. CallaJian, 204 S. W. 777, Tex. Civ. App. . Compare Sees. 694, 726. Sec. 843. Owner estopped to say contract too indefinite. An offer to buy 290,000 feet of land to be taken from a parcel containing 500,000 feet, said 290,000 feet to be divided as to front and back lands from the whole parcel as nearly equal as is possible, where accepted by the owner of the land, entitles the broker employed to find a purchaser therefor to his commissions, and the owner will not be heard to say it is too indefinite. Monk v. Parker, 180 Mass. 246, 63 N. E. 793. Sec. 844. Purchaser who paid money to vendor's agent estopped to deny the latter represented him. A purchaser who paid money to a real estate agent employed by his vendor to induce the agent to assist him in the trans- action is estopped to deny that the agent is his agent, when suit is subsequently brought by the vendor to reform the deed which was drawn by the agent for both parties, wherein a reservation of growing crops was by mistake omitted, since the mistake of the agent is the mistake of both principals. Warrick v. Smith, 137 111. 504, 27 N. E. 709; Seymour v. Slide, etc., Gold Mines, 42 Fed. 633. See also Sec. 258. Sec. 845. Receipt of $300 estopped owner to say contract of agency was invalid. Plaintiff, vendee, who brought suit against agents to re- cover money paid on an invalid contract of sale, can take nothing by the fact that the appointment of the agent to sell the land was verbal; the receipt of $300 by the owners would estop them to deny the agency. Bogart v. Crosby, 80 Cal. 195, 22 P. 84; Morris v. Terrill, 2 Band. (Va.), 6. 720 AMERICAN LAW KEAL ESTATE AGENCY. Sec. 846. In a suit against broker to account, vendor estopped to allege invalidity of sale. Where a vendor of land instituted a suit against his agents, real estate brokers, to recover a part of the purchase money in their hands and retained by them as commissions, he was thereby estopped to allege the invalidity of the sale as against said brokers, and therefore it was immaterial to inquire whether such sale was or was not valid under the statute of frauds. Christensen v. Wooley, 41 Mo. App. 53. Sec. 847. Principal estopped to claim rent paid by tenant to purchaser. Where a general agent, having power to sell a piece of land, limited only in the method of payment, and the agent having control of a building on the land, upon a sale of the land at public auction, announces, in the presence of a tenant, that the purchaser, after a named date, shall be entitled to the rents, and the special agent, upon the payment for a part of the time to the purchaser, expresses approval of it, the prin- cipal is estopped from claiming rent paid to such purchaser by such tenant. Knox v. Barnett, 18 Fla. 594. Sec. 848. Parties discovering- double agency pending negotia- tions and not dissenting thereto estopped. If pending negotiations the parties discover the double agency of the broker, and, without objecting, go on and, nevertheless, consummate the transaction, they can not, by reason thereof, re- fuse to pay commissions. Cassaday v. Carrahan, 119 Iowa, 500, 93 N. W. 386. Sec. 848a. Party to exchange estopped by act of agent. A party to a contract for an exchange of real estate is estopped by the act of his agent, though such agent, without the knowledge of the other party to the contract, represented both parties in the transaction. Neuman v. Friedman, 136 S. W. 251, 156 Mo. App. 142. PLEADINGS, PRACTICE, ETC. 721 Sec. 849. Bank receiving benefits estopped to deny authority to sell. Where a bank agrees to pay a real estate broker a commission on the sale of land it can not set up as a defense that, under the law of the State in which the land is situate a bank is prohibited from dealing in real estate, where it has availed itself of the benefits of the sale. Church v. Johnson, 93 Iowa, 544, 61 N. W. 916. Sec. 849 a. Defendant estopped from denying broker's au- thority as his agent. Where defendant did not prompt representation and sale by a broker to plaintiff; held, that defendant was thereafter estopped from denying broker's authority. Portsmouth Oil Refining Corp. v. Madrid Cotton Oil Co., 77 S. 8, Ala. Sup. . Sec. 850. Vendee knowing of fraud of agent can not insist on the validity of the sale. Where one takes a conveyance from an agent authorized to sell and convey land, knowing of the fraud or breach of trust of the agent, he can not insist on the validity of the sale. Morris v. Terrtil, 2 Rand. (Va.) 6. See also Sec. 845. Sec. 851. Landlord estopped to deny agent's authority to ac- cept waiver of privilege of renewal. Where a landlord accepted the waiver of the tenant's privi- lege of renewal, procured by his agent from the tenant, he was estopped to deny the agent's authority in the premises. No. 121 Madison Ave. v. Osgood, 18 N. Y. S. 126. Sec. 852. Broker not estopped by error to plead incorrectness. The delay of a broker to complain of an order in regard to his commissions on a sale made by him for the receiver of an insolvent bank, does not estop him from asserting its in- correctness, in the absence of prejudice occasioned thereby. Peters v. Anderson, 88 Va, 1051, 14 S. E. 974. See also Sec. 840. 722 AMEKICAN LAW EEAL ESTATE AGENCY. Sec. 853. Agent not estopped to claim commissions because memo, of agreement described defendant as owner of property to be sold. An agent under a contract to sell real estate on commis- sion is not estopped from claiming his commissions because the memorandum of the agreement describes defendant as the owner of the property to be sold. Condee v. Barton, 62 Cal. 1. Sec. 854. Seller estopped to allege its representative had no authority to employ a broker. Where a real estate broker makes a sale, the seller accept- ing the sale and claiming benefits thereunder is precluded from setting up, as against the broker's claim for commissions, the want of authority in its representative to employ such broker. Watkins Land Mtge. Co. v. Thetford (Tex. Civ. App. '06), 96 S. W. 72. Sec. 855. Principal not estopped to show commissions not to be paid for until contract fully completed. In an action for commissions for procuring purchasers of land, a letter from the defendant to the plaintiffs stating that they had not received all the earnest money, part of it remain- ing in escrow in the bank until it should be determined if they were entitled to it, and that they would pay the balance as soon as they received that amount, did not constitute an estoppel against a claim by the defendants that they were not to pay commissions until the contract was fully completed. Tracey Land Co. v. Polk Co. Ld. & Loan Co., 131 Iowa, 40, 107 N. W. 1029. Sec. 856. Joint owner not repudiating agent's fraud, estopped to deny connection therewith. A joint owner of real estate who consents to a listing there- of by his co-owner with real estate agents for sale, receives part of the consideration, and never repudiates the sale made by the agents, after discovering that they were guilty of fraud, is estopped to deny connection with the fraud, but will be held liable only to the extent of the benefit actually received. Alger v. Anderson, 78 Fed. 729. See also Sec. 329. PLEADINGS, PRACTICE, ETC. 723 Sec. 857. Brokers purchasing bonds, pretending to act for third parties, estopped, when found worthless, to recover. Plaintiffs, as brokers, entered into a contract for the pur- chase of certain bonds, claiming to act for an undisclosed prin- cipal, and stipulating that they should in no manner be held liable on the contract, which, as they had reason to believe, was made by defendant under a misapprehension as to the value of the bonds; in fact, they were acting for themselves, and there was no other principal. Held, that they could not maintain an action on the contract, not as agents for an undis- closed principal, because no such principal existed, nor as principal, because by their fraudulent misrepresentation they had secured immunity from liability on the contract as such, and estopped themselves from claiming rights which were cor- relative with such liability. Paine v. Loeb, 96 Fed. 164, 37 C. C. A. 434. Sec. 858. Equitable owner estopped to deny agent's au- thority. A contract of sale of realty was made by one having no title nor authority in writing to execute such an instrument; the attorney for the purchaser was informed by the equitable owner that such person was authorized to sell, and was directed to see him in reference to the matter. Held, under code of civil procedure, that such statement was a ratification of the agent's authority which estopped the equitable owner from denying it. Gregg v. Carey, 4 Cal. App. 354, 88 P. 282. Sec. 859. Broker's silence ineffective to estop from recovering commissions. Where defendant, a real estate broker, contracted to pay plaintiff, another broker, one dollar per acre if he would fur- nish a purchaser for a certain farm at $37.50 per acre, includ- ing the crops, and defendant, with full knowledge of plaintiff 's rights thereunder, voluntarily sold the farm for $35 per acre, without the crops, to a purchaser furnished by plaintiff, the latter was not estopped by his silence, after introducing such purchaser and defendant had informed him of the rise in the price, to claim full commissions on the subsequent consumma- AMEBICAN LAW EEAL ESTATE AGENCY. tion of the sale. Provident Tr. Co. v. Darraugh, 168 Ind. 29, 78 N. E. 1030. See also Sec. 115. Sec. 860. Broker turning property over to another to sell, estopped to claim commissions on sale by latter. An agent for the sale of lands who turns 'the property over to another to sell, with consent of the owner, and thereafter does nothing to effect a sale, loses his right to a commission, not on the ground of assignment, but because of a waiver of his right to make a sale; and he is estopped to assert any in- terest in the commissions resulting from the sale made by the other. Munson v. Mdbon, 135 Iowa, 335, 112 N. W. 775. Sec. 860a. Broker estopped to claim for benefit to party he did not represent. Where brokers who consummated exchange of properties did not assume to represent one owner, but acted as agents for other party, brokers for first party could not say their acts as agents for other party enured to his benefit as agents for first party. Whittle v. Klipper, 165 N. W. 425, Iowa Sup. . Agent employed to sell land could not say act of another agent enured to his benefit as agent of owner, where owner had already seen purchaser and had begun negotiations before other agent knew of the deal. Id. Sec. 860b. Where broker waived one commission in hope of future favor, on second failing, can not sue for breach and rely on defendant's estoppel to deny the released first commission as damages. Where a broker foregoes a commission on a sale of land, as consideration for placing other lands in his hands for sale at a net price, he can not sue for breach of the second contract and rely on such released commission as damages, on the ground that the owner was estopped to deny that he was damaged to that ex- tent. Shapiro v. Benenson, 167 N. Y. Sup. 1004, 181 App. Div. 19. Where broker foregoes a fixed commission on a sale of land as consideration for an agreement whereby he is given the sale of other land, on refusal of the principal to perform the second con- PLEADINGS, PRACTICE, ETC. 725 tract, the agent could either disaffirm the second contract and be restored to the consideration parted with, or recover damages for breach of the second contract. Id. Where a broker advanced money on a contract to sell land and the owner defaults, he can, on rescinding, recover the advance as for money had and received, but where, as consideration for the contract, the agent had foregone a commission due him on an- other deal, the action would be for the consideration parted with. Id. Sec. 861. Owner concluding sale with purchaser furnished by broker estopped to claim it was done independently. Where defendants gave plaintiff an option to effect a sale of coal properties, if sold within a certain time, on a stipulated com- mission, and agreed to assist plaintiff in the sale thereof, defend- ants will not he heard to say that a sale to one with whom plain- tiff was negotiating, made during the continuance of the option, was the result of their independent efforts. Wells v. Rocking Valley Coal Co., 137 Iowa, 526, 114 ST. W. 1076. See also Sec. 841. Sec. 861a. Since oral promise to pay commission is not bind- ing 1 , oral promise to make contract can not operate as estoppel to deny right to commission. Since an oral promise to pay a commission for the sale of land is not binding, an oral promise to make a contract can not op- erate as an estoppel to deny broker's right to a commission, since tHe broker had no right to rely on it. Edwards v. Laird, 134 P. 365, 22 Cal. App. 398; Connor v. Higgins, 132 P. 849, 21 Cal. pp. 756. Sec. 862. When action tried on theory of written contract, estopped on appeal to claim it was verbal. Where an action was tried by both parties on the theory that the contract sued on was a written one, and defendant requested several instructions which so stated, he could not, on appeal, be 726 AMERICAN LAW EEAL ESTATE AGENCY. heard to contend that the contract was verbal. McDermott v. Mahoney (Iowa Sup. '06), 106 N. W. 925. Compare Sec. 840. Sec. 862a. That broker and purchaser conspired to defraud vendor did not estop the purchaser to sue for misrepre- sentation as to the acreage purchased. That vendor's broker, the purchaser and another conspired to defraud vendor by retaining a part of the price, did not estop the purchaser to sue the vendor for the broker's misrep- resentation as to acreage. Farris v. Gilder (Tex. Civ. App. '09), 115 S. W. 645. Compare Sec. 862b. Sec. 862b. Conspiracy of parties to sale to deprive broker of commissions. It is immaterial to a real estate agent's rights to a commission on a sale procured by him that he did not obtain an offer for his principal on terms as good as those on which the sale was made, where the parties to the sale conspired to deprive him of his commissions. Lipscomb v. Mastin (Mo. App. '10), 125 S. W. 1177; Gibbon v. Jurgenson, 190 111. App. 55. Compare Sec. 862a. Sec. 862c. Cases applying doctrine of estoppel. (1) Where pending negotiations by brokers with a prospective customer, the owners took the negotiations into their own hands, and were able only to procure an option contract, they were es- topped to deny liability for commissions, on the ground that the customer produced by the brokers was willing only to enter into an option contract. Duncan v. Parker, 142 P. 657, 81 Wash. 340, L. E. A. 1915 A, 804. (2) Where defendant employed plaintiff to sell certain real property on a commission of ! 1 / 4% on the selling price, when the title is passed, and the title never passed to the purchaser pro- cured by plaintiff because it was defective, the phrase, "when the title is passed," was not to be construed as a condition to plain- tiff's right to commission, but rather as fixing the time when the contract should be performed, and on the failure of the title to pass for that reason, defendant was estopped to claim that plaintiff PLEADINGS, PRACTICE, ETC. 727 had failed to earn his commission. MecTces v. Mullen, 132 N. Y. Sup. 942, 75 Misc. Rep. 303. (3) Where defendant employed plaintiff brokers to secure a loan, and later plaintiffs' employee, in an indefinite conversation with another loan broker, by a mutual mistake as to the loan in- volved, stated that it would not be made, plaintiff was not es- topped to deny release of defendant from its obligation and con- tract for commissions. Colvin Phillips & Co. v. Newoc Co., 172 P. 355, Wash. Sup. . CHAPTER XIV. SECTION. SECTION. 863. Dismissal, when proper. 866. Prime facie ease. 864. Dismissal, when error. 867-873a. Issues. 865. Non-suit. 874-887g. Variances. Sec. 863. Dismissal of action, when proper. A motion to direct a verdict for defendant without special ground, should be granted where the plaintiff's evidence wholly fails to show such performance on his part as is neces- sary to entitle him to recover. Gerding v. Haskins, 141 N. Y. 514, 36 N. E. 601. Where an action is brought to recover com- missions on a loan which a certain person is alleged to have negotiated for defendants, in the absence of proof that such person was authorized to act as defendant's agent in the trans- action, the action will be dismissed, without being submitted to the jury. McLaughlin v. Ranger, 66 N. Y. S. 450, 32 Misc. 732. Where, in an action for a commission, the evidence did not show performance on plaintiff's part before defendant's termina- tion of the transaction, defendant's motion to dismiss on that ground should have been granted. Von Bayer v. Ninigret Mills Co., 150 N. Y. Sup. 291, 164 App. Div. 698. Dismissal of action by owner's agent against drawer of a check given to such agent for purchase price thereof, less an incum- brance, where deed of conveyance was changed in a material mat- ter by such agent, without knowledge of the owner or proposed purchaser, and where sale, for that reason, was not consummated, was not error. Dorwart v. Hockett, 173 N. W. 596, Neb. Sup. . Sec. 864. Dismissal of action, when error. , Evidence in an action to recover commissions for the sale of real estate was held to show that the owner had reasonable cause 728 PLEADINGS, PRACTICE, ETC. 729. to believe that the party to whom he sold the property was sent to him by the agent, so as to render it error to dismiss the case. Henninger v. Burch, 90 Minn. 43, 95 N. W. 578. Sec. 865. Non-suit. In the absence of any evidence to show that the sale by de- fendant to his brother and the subsequent conveyance by him to B., was done to defraud plaintiff of his commissions, he could not recover them from defendant. Bennett v. Kidder, 5 Daly (N. Y.), 512; Ham v. Weber, 43 N. Y. S. 1059, 19 Misc. 485. See also Sec. 425a. On plaintiff's evidence upon an action on an I. 0. TL, signed by defendant, and followed by the descriptive word, "cashier," for payment of a certain sum on completion of a sale; held, that it was error to direct a nonsuit. Hay v. McDonald, 131 P. 74, 21 Cal. App. 204. In action by selling agent for commission on sale made directly by vendor, evidence to show agreement between vendor and vendee to pay commission to selling agent, not of itself sufficient, or with other evidence, to show such contract; held, properly rejected and nonsuit ordered. Jordiana & Phillips v. Dixie Culvert & Metal Co., 95 S. E. 679, Ga. Sup. . Sec. 866. Prima facie case. Testimony that a deed was tendered to the principal, "in pur- suance of an agreement between" the parties, is sufficient prima facie, to sustain a finding that it was delivered within thirty days. Beebe v. Roberts, 3 E. D. Smith (N. Y.) 194. A con- tract of sale signed by the purchaser, unilateral when tendered to the vendor, is prima facie evidence of the purchaser's readi- ness and willingness to buy. Flynn v. Jordal, 124 Iowa 457, 100 N. W. 325. Evidence by plaintiff that he did business as a real estate agent, though he assisted in the foundry business, and that the usual commissions allowed such agents for selling property of the character in suit was five per cent., was compe- tent as prima facie evidence of value. Askby v. Holmes, 68 Mo. App. 23. Proof that a party has executed a formal con- tract to convey certain property in exchange for other, is sufifi- 730 AMERICAN LAW EEAL ESTATE AGENCY. cient prima facie evidence of his title thereto, in an action by a broker for commissions in effecting an exchange. Muscovitz v. Hornberger, 46 N. Y. S. 462, 20 Misc. 558. Termination of a revocable agreement to sell land by a sale made by the principal before performance by the agent is an af- firmative defense which need not be negatived by the agent, in his action for breach of contract, in order to make out a prima facie case. Goldman v. Weisman, 143 N. W. 983, 123 Minn. 370. A broker can not recover a commission for procuring a sale of bonds unless he makes out a prima facie showing of compli- ance with the conditions of his contract with the owner. Butter- field v. Consolidated Fuel Co., 132 P. 559, 42 Utah, 490. In an action to recover a broker's commission, where defendant agreed to pay plaintiff a certain commission upon consummation of a deal, a prima facie case held to be made out when plaintiff showed a contract for the sale of the land, formally executed by the parties and accepted by the defendant, notwithstanding de- fendant later refused to carry out the contract. Dougherty v. Beckleriberg, 205 111. App. 491. Sec. 867. Issue as to which of several brokers effected a sale. On the issue of which of several rival brokers effected a sale so as to entitle him to commissions, it is proper to show by the purchaser his state of mind regarding the purchase after he had left the broker claiming the commission. McGuire v. Carlson, 61 111. App. 696. Sec. 867a. Issue of good faith of defendant in abandoning negotiations. In an action by real estate brokers to recover commission, where it appeared that after considerable negotiations with plaintiffs' customer, both such customer and defendant informed plaintiffs that they would not negotiate further with reference to the trans- action, but yet defendant later sold the property to another per- son, who in turn conveyed it to plaintiffs customer, the control- ling issue of fact was that of defendant's good faith in abandon- ing the negotiations. Stone v. Kreis, 202 111. App. 43. PLEADINGS, PEACTICE, ETC. 731 Sec. 868. Issue as to whether defendant agreed to pay plain- tiff twenty-five cents per acre and five per cent, on balance. In an action for a balance claimed to be due for selling a large tract of land for defendant, where the issue is whether defendant agreed to pay plaintiff the sum of twenty-five cents per acre and a commission of five per cent, on the balance, the testimony of a real estate agent is competent to show that the compensation claimed by plaintiff is reasonable and not unusual. Greer v. Laws, 56 Ark. 37, 18 S. W. 1038. Sec. 869. Issue as to indebtedness existing at beginning of action for undisclosed services. In an action for a broker's commissions, the only allegation in plaintiff's complaint, showing the liability of defendant, was that within two years prior thereto the defendant became in- debted to plaintiff's assignor in a certain sum for services ren- dered by him to the defendant at his special instance and request. Held, that the only issue tendered by the plaintiff was the indebtedness existing at the time the action was com- menced for certain undisclosed services, and on that issue it was competent for defendant to offer, and for the court to consider, any evidence which would tend to show that, even though the services were rendered, they did not create an in- debtedness against the defendant, and defendant's failure to set up in answer, as a defense, that the assignor had received a commission from the purchaser, did not preclude him from offering evidence thereof, or the court from considering its ef- fect. Earner's Law & Coll. Co. v. Bradbury, 3 Cal. App. 256, 84 P. 1007. Compare Sec. 678. Sec. 870. Issue in action for commissions for sale of real estate to stock company. In an action for commissions for effecting a sale of land, the petition alleged that the land was placed in plaintiffs' hands by a written contract of sale at the price of $50,000, and that they were to receive ten per cent, commission on the amount realized by the defendant, to be paid when the purchase price was received, whether the land was sold directly or through AMERICAN LAW ft"EAL ESTATE AGENCY. the organization of a stock company and the money value of the lands realized by a sale of the stock; that a mining com- pany was organized to which defendant conveyed the land, re- ceiving practically all of the stock of the company, the par value of which was $150,000, that defendant had received $100,000 from the sale of the stock, on which amount plain- tiffs were entitled to commissions. Held, that plaintiffs were not entitled to show that after selling 300 shares of stock at 33 1/3 cents on the dollar, and having a purchaser ready to buy all the stock at that figure, defendant raised the price to forty cents, the action not being for damages for breach of contract, but proceeding on the theory of an actual sale. Cos- grove v. Leonard Her. & Realty Co., 175 Mo. 100, 74 S. W. 986. Sec. 871. Issue as to procuring cause of sale, what not con- trolling. The fact that plaintiff did not inform defendant that the purchaser was his customer before the sale, was not controlling on the issue as to whether plaintiff was the procuring cause of the sale to him. Metcalfe v. Gordon, 83 N. Y. S. 808, 86 App. Div. 368. Compare Sec. 360, Sec. 871a. To avoid a contract issue must be presented by the pleadings. A land contract entered into by the purchaser's agent can not be avoided by the purchaser, in a suit to enforce the pur- chase money notes, because the agent also represented the vendor, where that fact was not presented in the pleadings. Anderson v. Creston Land Co., 96 Va. 257, 31 S. E. 82. Sec. 872. Issue presented by amendment to answer false and misleading. On the trial of a cause the defendant obtained leave to amend his answer by alleging "that after making the sales named they (plaintiffs) complained that the prices were too high, as named by defendant, and made no effort to sell the same, but neglected the same to the defendant's damage and injury. " Held, PLEADINGS, PRACTICE, ETC. 733 tHat tHe matter involved in the amendment, not being perti- nent to the case, was calculated to raise a false issue and dis- tract the attention of the jury from the real questions for their determination. Marshall v. Gobel, 32 Neb. 9, 48 N. W. 898. Sec. 873. Issue whether authority to make a sale was subject to wife's approval. In an action by a broker for commissions for making a sale of realty, where the defense set up in the answer was, that the broker was employed to sell the property upon the express understanding that any sale of the property would be subject to the approval of the owner's wife, and that the wife did not consent to the sale made by the broker, but disapproved of it, and refused to sign the deed, the issue to be determined was not, whether the sale made by the broker was subject to the wife's approval, but rather, whether or not authority to make a sale was conditioned upon the wife's approval. Baker & Go. V, DeVitt (Tex. Civ. App. '08), 110 S. W. 528. Sec. 873a. Evidence held not to raise issue of revocation of authority to sell. In an action by a broker for commission earned by producing a purchaser to whom defendant refused to convey, evidence held not to raise the issue of revocation of authority to sell. Mauser v. Hurdle, 140 P. 479, 27 Colo. App. 567. Sec. 874. Variance, broker can not declare as for perform- ance and recover damages for breach. Under a written agreement of a land owner to pay a broker a certain sum if he should send or cause to be sent to the land owner a person with whom the latter "may see fit and proper to effect a sale or exchange of the land," the broker can not re- cover the sum stipulated without proof of the sale or exchange of the land, nor on a quantum meruit for services in negotia- tions for such sale or exchange, without proof that such nego- tiations were rendered fruitless by the fault of the land owner. 734; AMEBICAN LAW EEAL ESTATE AGENCY. Walker v. Tirrell, 101 Mass. 257; Drury v. Newman, 99 Mass. 256 ; Robinson v. Olcl. Fire Ins. Co., 155 P. 202, Okl. Sup. . Sec. 875. On claim for selling property, broker can not re- cover as a middleman. A complaint which alleged that complainants were real estate brokers and that defendant, well knowing the fact, gave them an option on his property and agreed to pay a commission for their services in case of a sale, and that they procured a pur- chaser, and in pursuance of negotiations initiated by them a sale was effected, stated a cause of action on the theory that the plaintiffs were brokers, and hence they could not recover on proof that they were mere middlemen. Southack v. Lane, 65 N. Y. S. 629, 32 M. 141 ; Walker v. Osgood, 98 Mass. 348. Sec. 876. In order to take advantage of variance defendant must make timely objection. In order to take advantage of a variance between the allega- tions of a petition and the proof, defendant must make objec- tion in the trial court to the introduction of evidence on that ground and show by affidavit, in what respect he has been misled thereby. Fisher, etc., R. E. Co. v. Staed R. Co., 159 Mo. 562, 62 S. W. 443; Gregg v. Loomis, 22 Neb. 174, 34 N. W. 355; Thompson v. Sargent, 134 P. 7, 66 Or. 354. Sec. 877. Allegation to pay 5 per cent, on any amount, not sustained by evidence if sold for $5,000. An allegation that defendant agreed to pay 5 per cent, on the amount for which he should sell the mill of defendant, whatever it might amount to, is not sustained by evidence that defendant agreed to pay plaintiff 5 per cent, if he would sell the mill for $5,000; and this forms a fatal variance between the contract declared on and that proved. Menifee v. Higgins, 57 111. 50. Sec. 878. Allegation that rights sold comprised 50,000 acres not sustained by proof of 35,000. Counts in a complaint alleged that plaintiff acted for a third person in a sale to defendant of turpentine rights belonging PLEADINGS, PRACTICE, ETC. 735 to S third person; tHat the rights sold extended to the trees comprised in 50,000 acres, that the consideration promised to defendant was a net price per acre, to be paid to the third per- son, and commissions to be paid to plaintiff; the evidence showed that what was actually sold was the third person's tur- pentine rights then owned within a described territory said to contain 50,000 acres, less 3,000 acres reserved, together with such turpentine rights within that territory as might be ac- quired by the third person within a fixed period; the rights so owned and sold, including subsequent acquisitions did not extend to land exceeding 35,000 acres. Held, a fatal variance between the allegations and the proof. Moses v. Beverly, 137 Ala. 473, 34 S. 825. Sec. 879. No variance between allegation for fee on cost of houses, and proof including the grounds. In an action by a real estate broker for commissions the declaration alleged that plaintiff rendered services in procur- ing for defendants a contract for the erection of a number of houses, and that defendants agreed to pay him a commission of one per cent, of "the amount of the contract price for the erection of said houses." Plaintiff claimed commissions on the sum, which the evidence showed included both the cost of the houses and of the lands on which they were erected, this entire sum being secured by mortgage to defendants from the other party to the contract; the contract for commissions was oral, and plaintiff testified that both parties understood that the com- mission was to be calculated on the total amount of the mort- gages. Held, that there was no material variance between the pleadings and the proof. Richards v. Richman, 5 Pennewill (Del.) 558, 64 A. 238; Smith v. Sharp (Ala. Sup. '09), 50 S. 381. Sec. 879a. Slight excess in acreage not a material variance. Findings of fact in an action for commissions for the sale of land, that the purchasers to whom the agent sold took 320 acres, did not limit the amount of land sold to 320 acres so as to defeat the action, the authority being to sell 327 acres, where, in answer to another question, if there was an excess AMEKICAN LAW RKAT. ESTATE AGENCY. over 320 acres, to state how many acres of such excess each of the purchasers agreed to take, the jury found that one pur- chaser agreed to take 3Vz acres, and another 3Va acres. Howell v. Denton (Tex. Civ. App. '08), 113 S. W. 314. Sec. 879b. Immaterial variance between description of land conveyed and in broker's authority. In a broker's action for commissions for an exchange of prop- erty conveyed after defendant had examined the property and accepted abstracts and a deed thereof; held, that a variance be- tween the description of the land conveyed and that in defend- ant's letter of authority was immaterial, and that the broker was entitled to his commission. Price v. Partridge, 139 P. 34, 78 Wash. 362. Sec. 880. Agreement for sale and proof of an exchange, not a fatal variance. Where a declaration alleges an agreement on a "sale" of real estate, proof of an exchange of the property is not a fatal vari- ance, if defendant is not misled. Whitaker v. Engle, 111 Mich. 205, 69 N. W. 493; Park v. Towne (S. D. Sup. '08), 116 N. W. 1123; Clark v. Allen, 125 Cal. 276, 57 P. 985. In an action by a broker to recover a commission for a sale of the defendant's real estate; held, that there was no variance between the evidence offered and the statement of claim. Hobbs v. Junge, 202 111. App. 191. Sec. 880a. No material variance between allegations and proof. There is no material variance between the petition, in an ac- tion by a broker for commissions, which alleges his employment to procure a purchaser for a specified commission, the procurement of a purchaser, and the subsequent sale of the land to him, and the evidence, which shows that the owner and the purchaser pro- cured by the broker entered into an enforceable contract for the sale and purchase of the land, and that the owner failed to per- form, though the purchaser was ready and willing; the word "sale" not being limited to a transaction where the legal title is PLEADINGS, PEACTICE, ETC. 737 conveyed to the purchaser. Sanderson v. Wellsford (Tex. Civ. App. '09), 116 S. W. 382; Farrington v. McClelland, 146 P. 1051, 26 Cal. App. 375; Moore v. King, 178 S. W. 124, Mo. -; Johnson v. Stewart & Hay Bldg. Co., 153 S. W. 511, 171 Mo. App. 543; Ely v. Wilde, 122 P. 1122, 62 Or. Ill; Heiser v. Rey- nolds, 106 A. 888, Pa. Sup. . Where a plaintiff stated a cause of action as a real estate bro- ker, and the evidence showed plaintiff to have acted merely as middleman, the variance was not fatal, though the trial judge failed to order the complaint to be amended to conform to the proof. Clopton v. Meeves, 133 P. 907, 24 Idaho, 293. Sec. 881. No variance where plaintiff was to be paid $60 for services and proof of 2 per cent, on $3,000. There is no variance between the pleadings and proof, where the petition avers that plaintiff was to receive $60 for his services, if he assisted in selling certain realty, and the proof of plaintiff shows that he was to receive two per cent, on the amount for which the property should be sold or exchanged, and that it was sold for $3,000. Rembolz v. Bennett, 86 Mo. App. 174. Sec. 882. Claim for given sum and proof of smaller no va- riance where defendant was not misled. Where plaintiff claims he is entitled to a given sum under a contract, he is entitled to recover, though the proof shows that he was entitled to a smaller sum, unless the variance has mis- led defendant. Nichols v. Wkltaere, 112 Mo. App. 692, 87 S. W. 594. Sec. 882a. No variance between allegations and proof of commission to be paid to broker. There was no variance between an allegation that it was under- stood that plaintiff should receive the usual and customary com- mission paid real estate agents, and proof of a parol agreement, without any stipulations as to the amount of the compensation, as it will be implied by law that plaintiff was to receive the cus- tomary or reasonable commission. Lowenstein v. Holmes, 135 iP. 727, 40 Okl. 33. 738 AMERICAN LAW HTML ESTATE AGENCY. Sec. 882b. Variance as to amount one party to proposed trade was to pay to the other. There is a variance where proof and allegations in petition in broker's action for commission differ as to the amount one party to proposed trade was to pay to the other. Britton v. Eagan, 196 S. W. 972, Tex. Civ. App. . Sec. 883. On allegation of special contract, can not recover on implied agency. Under an allegation of a special contract of employment to sell property, recovery can not be had upon an agency implied from an acceptance of the agent's services. Bassford v. West, 124 Mo. App. 248, 101 S. W. 610; Smith v. Robinson, 214 S. W. 771, Ky. Ct. App. . Sec. 883a. Where express contract alleged, can not recover on implied one. Even if the notes were sufficient to show an implied contract for commissions on a sale of defendant's farm, there could be no recovery where only an express contract was declared on. Smith v. Robinson, 214 S. W. 771, Ky. Ct. App. . Sec. 884. Contract made in April, not sustained by proof of similar made in August. Where the petition in an action by a broker for commis- sions sets forth a cause of action based on a contract of em- ployment entered into in April, there can be no recovery on proof showing a contract made in August following, contain- ing similar terms, and the court should either direct a verdict for defendant, or permit an amendment making the pleading conform to the proof. Hurst v. Williams, 31 Ky. L. R. 658, 102 S. W. 1176. Sec. 884a. Variance between allegations and proof. Where, in an action by a broker for commissions for having procured a purchaser for defendant's land, the plaintiff alleged that he procured a certain person as purchaser, and the evi- dence showed that such person was acting as agent for an PLEADINGS, PRACTICE, ETC. 739 undisclosed principal, there was a variance. Matt ?. Minor (Gal. App. '09), 106 P. 244. Sec. 884b. Variance between allegation and proof. Where, in a suit for broker's commissions upon an express contract, plaintiff claimed that he was to receive all of the selling price above $30 per acre, and defendants denied any contract for commissions, asserting that they employed plain- tiff as an attorney only, they could not on the trial prove an express contract different from the one sued on; to-wit: that they were to receive a net profit of 50 per cent, on the trans- action. Dempster v. Cochran, 174 Fed. 587. Sec. 884c. Variance between allegations and proof as to ex- cess to broker for commission. Proof of the defendant owner's contract to convey to plaintiff for a certain amount in cash, leaving him to retain any greater sum which he might receive from another purchaser; held, at variance with an allegation that defendant employed plaintiff to procure a purchaser, and agreed that if plaintiff should sell the property for more than a certain sum he could have the excess as compensation for his services and expenses. Smith v. Tatum, 79 S. E. 775, 140 Ga. 719. Sec. 885. Evidence at substantial variance with allegations inadmissible. The complaint must allege either performance or a valid excuse for non-performance, and the proof must conform to the allegations of the petition. Daly v. Russ, 86 Cal. 114, 24 P. 867 ; Norman v. Reuther, 54 N. Y. S. 152, 25 Misc. 161 ; Tar- borough v. Cr eager (Tex. Civ. App. '03), 77 S. W. 645; Martin v. Pagan, 88 N. Y. S. 472, 95 App. Div. 154; Hoefling v. Ham- bleton, 84 Tex. 517, 19 S. W. 689. Sec. 886. Allegation that land was conveyed to two and proof of to but one, not a material variance. In an action for a broker's commissions on a sale of land, where the complaint alleges that the land was conveyed to two 740 AMEBICAN LAW REAL ESTATE AGENCY. persons, and the finding is that it was conveyed to one of these, the variance is not a material one. Clifford v. Meyer, 6 Ind. App. 633, 34 N. E. 23. Sec. 886a. Evidence which did not establish a variance Where the basis of an action was a promise to pay commissions for the sale of land, it was immaterial whether the land belonged to defendant or his wife, or whether it was a separate contract or an undivided interest in the contract; and hence, evidence showing such facts did not establish a variance. Fritti v. Pendle- ton, 134 S. W. 1186, Tex. Civ. App. . Sec. 886b. No variance where joint contract to pay commis- sion alleged and several contracts proved. In a real estate agent's action for a commission, alleging a contract whereby defendants jointly contracted to pay a commis- sion for a sale of land, wherein the court found, on sufficient evi- dence, that defendants had listed the land and agreed to pay a commission as alleged; there was no variance on the ground that the evidence showed a several obligation by each defendant to pay a commission on his part of the land. Keithley v. Ward, 217 S. W. 428, Tex. Civ. App. . Sec. 887. Variance in date not material, where contract was made before the sale and within the time. In an action to recover commissions under a contract for the sale of land, proof that the contract was made on the exact date alleged is not required, since, while it is necessary to allege the date with convenient certainty, it is sufficient if shown to have been prior to the consummation of the sale and within the time prescribed by the statute of limitations. Dillard v. Olalla Min. Co,, 52 Ore. 126, 96 P. 678 ; Miller v. Bohanan, 165 N. W. 317, Iowa Sup. ; Cochran v. Staman, 167 N. W. 1015, 201 Mich. 632. Contra, Fortran v. Stowers (Tex. Civ. App. '08), 113 S. W. 631. PLEADINGS, PRACTICE, ETC. 741 Sec. 887a. Variance in the terms of contract released agent from liability. A real estate agent who received a part payment of the pur- chase money on a sale, conditioned that the offer be accepted by the owner on the terms and conditions specified or the money be returned, is not liable in an action by the purchaser for the money, if the offer was accepted by the owner, and if, at the time of acceptance, the owner and purchaser, by mutual agreement, vary the terms and conditions upon which the agent sold. Fowler v. Quail, 36 Kan. 507, 13 P. 784. See also Sec. 293. Sec. 887b. Action on contract for commission and proof of breach not a variance, but failure of proof. Under Eev. Laws 1910, Sec. 4786, where the cause alleged is on a broker's contract for commission, and the proof shows it to be a cause for the defendant owner's breach of his contract to sell to the purchaser procured, there is not a variance but a fail- ure of proof. Robinson v. OTcl. Fire Ins. Co., 155 P. 202, Okl. Sup. . Sec. 887c. Fatal variance between allegation and proof. In a broker's action for compensation, there is a fatal variance between allegation that plaintiff sold land for defendant for a specified commission, and proof that land was owned by another, that plaintiff acted for the owners' agent, and that, upon the agent's insolvency, the defendant had charge of his affairs and re- ceived the consideration for the land. Collins v. Hutchings, 194 S. W. 733, Mo. App. . Sec. 887d. Failure to prove that broker was procuring cause of lease not a fatal variance. Where complaint alleged that defendants agreed with plaintiff, in consideration of his performing services, to give him exclusive right to secure an option for a lease on defendants' mining prop- erty, and that if lease should be taken, he should receive what- ever he obtained above a royalty of thirty cents per ton, and that if defendants should themselves option the property it should not 742 AMERICAN LAW REAL ESTATE AGENCY. affect plaintiff's right to compensation, the failure to prove that plaintiff was the procuring cause of the lease was not a fatal variance. McRae v. Feigh, 173 N. W. 655, Minn. Sup. . Sec. 887e. Fatal variance between contract alleged and that proved. There was a fatal variance between pleading and proof, where broker, in an action to recover commission for furnishing a pur- chaser, alleged that plaintiff effected a sale for the amount asked, of which $2,000 was to be paid on a certain date, possession of part to be given in the fall, and full possession to be given the next spring, and the contract that the owner proved provided that the owner was to receive a $3,000 first payment, and the crop for the year was to be reserved. Cook v. Salisbury, 225 S. W. 112, Mo. App. . Sec. 887f . Proof of agreement to split commission does not support allegation of per centage on purchase price. A complaint alleging that defendant, the second broker with whom plaintiff listed lands, agreed, in event of sale, to pay plain- tiff one-half of a percentage of the purchase price, is not sup- ported by proof that defendant agreed to split commission. Por- ter v. Cox, 225 S. W. 84, Tex. Civ. App. . Sec. 887g. No variance where proof included the terms set up in the complaint. Where complaint alleged the plaintiff was employed as a real estate broker to procure a purchaser for land for $55,000, and that defendants agreed to pay plaintiff a commission of 2% of stated selling price, a finding setting up a like employment, "if he se- cured a purchaser on terms satisfactory to the defendants," in- cluded the terms set up in the complaint, and there was no vari- ance. Gardner v. Buschler, 111 A. 589, Conn. Sup. . CHAPTER XV. QUESTIONS TO BE DETERMINED BY THE JURY. Sec. 888. In an action for commissions, whether parties en- tered into a contract, a question for the jury. In an action to recover commissions for purchasing prop- erty for defendant, whether a contract such as stated in the complaint was entered into, was a question for the jury, and it was error to direct a verdict for plaintiff. Anderson v. Johnson (N. D. Sup. '07), 112 N. W. 139; Horwitz v. Pepper, 128 Mich. 688, 87 N. W. 1034; Shultz v. Eberle, 124 Wis. 594, 102 N. W. 1055; Ballentine v. Mercer, 130 Mo. App. 605, 109 S. W. 1037; Mead v. Arnold, 131 Mo. App. 314, 110 S. W. 656; Queen v. Jennings, 108 A. 379, * N. J. Sup. *-*. Sec. 889. If party adduces evidence to justify a verdict, error to take from the jury. It is the peculiar province of the jury to pass upon questions of fact, and the issues of fact, as well as of law submitted to the court for determination. A jury not having been waived, it was error for the court to undertake to decide upon the weight of the evidence, and withdraw from the consideration of the jury, a phase of the controversy upon which plaintiff was entitled to have them pass. Morey v. Harvey, 18 Colo. 40, 31 P. 719 ; Blackwell v. Greenbaum, 50 111. App. 143 ; Eyan v. Page, 123 Iowa, 246, 98 N. W. 768 ; Tracey Ld. Co. v. Polk Ld. & Ln. Co., 131 Iowa, 40, 107 N. W. 1029; West v. Prewitt, 19 Ky. L. R. 1480, 43 S. W. 467; Wright v. Young, 176 Mass. 100, 57 N. E. 212; Rogers v. Evan. Bap. Ben., etc., So., 168 Mass. 592, 47 N. E. 434; West v. Demme, 128 Mich. 11, 87 N. W. 95; Marx v. Otto, 117 Mich. 510, 76 N. W. 7; Crevier v. Stephen, 40 Minn. 288, 41 N. W. 1039 ; Finch v. Guardian Tr. Co., 92 Mo. App. 263; Ldngstreth v. Korb, 64 N. J. L. 112, 44 A. 934; Grade v, Stevens, 171 N. Y. 658, 63 N. E. 1117; Condict v. Cowdrey, 123 N. Y. 463, 25 N. E. 946; Beddin v. 743 744 AMERICAN LAW REAL ESTATE AGENCY. Dam, 64 N. Y. S. 611, 51 App. Div. 636; Tkornal v. Pitts, 36 N. Y. Super. Ct. 379; Meeslahn v. Englehard, 20 N. Y. S. 900, 1 Misc. 412; Meyer v. Strauss, 58 N. Y. S. 904, 42 App. Div. 613 ; Ringold v. Rhode, 132 Pa. St. 189, 18 A. 1118 ; Clendenin v. Pancoast, 75 Pa. St. 213; McCaffery v. Page, 20 Pa. Super. Ct. 400; Roeder v. Butler, 19 Pa. Super. Ct. 604; Blair v. Slosson, 27 Tex. Civ. App. 403, 66 S. W. 112; Center v. Conglomerate Min. Co., 23 Utah, 165, 64 P. 362; Dunsmier v. Loivenburg, 31 Canada Supreme Ct. 334; Lamson v. Main, 43 N. Y. Super. Ct. 24. Sec. 890. Question of ability, readiness and willingness of customer to perform the contract is for the jury. Whether the broker's customer was able, ready and willing to enter into the transaction is for the jury to determine. Mc- Dermott v. Mahoney, 119 Iowa, 470, 93 N. W. 499 ; Hamill v. Basenhover, 110 Iowa, 369, 81 N. W. 600; Finch v. Guardian Tr. Co., 92 Mo. App. 263 ; Middleton v. Thompson, 163 Pa. St. 112, 29 A. 796; Smye v. Groesbeck (Tex. Civ. App. '02), 73 S. W. 972. And whether the failure to mention the name of the purchaser to the principal was a fraudulent concealment. Newhall v. Pierce, 115 Mass. 457; Geery v. Pollock, 44 N. Y. S. 673, 16 App. Div. 321; Ames v. McNally, 26 N. Y. S. 71, 6 Misc. 93 ; Page v. Voorhies, 16 N. Y. S. 101 ; Vandevort v. Wheel- ing Steel, etc., Co., 194 Pa. St. 118, 45 A. 86; McCaffery v. Page, 20 Pa. Super. Ct. 400 ; Heldmyer v. Cleaver, 104 A. 635, Del. Super. ; Thompson v. Ryan, 174 N". W. 15, opin. mod. on re., 176 N. W. 175, Iowa Sup. ; Rameszano v. Avensino, 189 P. 681, Nev. Sup. . Sec. 891. Whether defendant prevented sale, exchange, lease or loan. Whether the defendant prevented a sale, an exchange, a lease or a loan is for the jury to determine. McDermott v. Mahoney, 119 Iowa, 470, 93 N". W. 499; Wright v. Young, 176 Mass. 100, 57 N. E. 212; Green v. Wright, 36 .Mo. App. 298; Hancock v. Stacey (Tex. Civ. App. '09), 116 S. W. 177; Longworth v. Stev- PLEADINGS, PRACTICE, ETC. 745 ens, 145 S. W. 257, Tex. Civ. App. ; White v. Enckson, 169 K W. 535, Minn. Sup. ; Stewart v. Chittack, 222 S. W. 863, Mo. App. ; Baskett v. Jones, 225 S. W. 158, Ky. Ct. App. ; Holt v. Calavay, 226 S. W. 179, Ark Sup. . Sec. 891a. Whether under the contract the broker's commis- sions were not to become due until a lease had been signed by the parties was a question for the jury. In an action by a broker for commissions, evidence exam- ined and held that, whether there was a contract between the parties by which plaintiff's commission was not to become due until there had been a lease signed by the parties was a ques- tion for the jury. Benedict v. Pincus, 95 N. Y. S. 1042, 109 App. Div. 20. Also, as to whether commissions were to be paid before title passed.. Dekremen v. Clothier, 96 N. Y. S. 525, 109 App. Div. 481. Sec. 892. Whether the services were rendered with expecta- tion of reward. Whether the services performed by plaintiff in finding a pur- chaser were rendered with the mutual understanding that they were to be paid for, should have been submitted by the jury. Armstrong v. Ft. Edward, 159 N. Y. 315, 53 N. E. 1116 ; Darling v. Howe, 14 N. Y. S. 561, 60 Hun, 578; Bullock v. Menninger (Ky. Ct. App. J 10), 125 S. W. 256; Piper v. Allen, 219 S. W. 98, Mo. App. . Sec. 893. Whether employed as a broker and authorized to do the acts claimed. It is for the jury to determine whether plaintiff was em- ployed as a broker and authorized to perform the acts for which he claims compensation; in case of a conflict of testi- mony it is error for the court to direct a verdict. Stephens v. Bailey, 149 Ala. 256; 42 S. 740; Ryan v. Page, 123 Iowa, 246, 98 N. W. 768; Monk v. Parker, 180 Mass. 246, 63 N. E. 793 ; Codd v. Seitz, 94 Mich. 191, 53 N. W. 1057 ; M erriam v. Johnson, 86 Minn. 61, 90 N. W. 116 ; Cody v. Dempsey, 83 N. Y. S. 899, 86 App. Div. 335 ; Reddin v. Dam, 64 N. Y. S. 611, 51 App. Div. 636 ; Moore v. Boehm, 26 N. Y. S. 67, 6 Misc. 38 ; 746 AMERICAN LAW REAL ESTATE AGENCY. Tieck v. McEenna, 101 N. Y. S. 317, 115 App. Div. 701; Black v. Snoolc, 204 Pa. St. 119, 53 A. 648; Dixon v. Daub, 17 Pa. Super. Ct. 168; Center v. Conglomerate Min. Co., 23 Utah, 165, 64 P. 362 ; Myers v. Kilgin, 160 S. W. 569, 177 Mo. App. 524 ; Tupy v. Cech, 199 111. App. 496; Levine v. Gray, 176 N. Y. Sup. 77. Sec. 894. The question of the authority of principal's agent to employ a broker. The authority of the principal's agent, in this case his father, to employ a broker is a question of fact that should have been submitted to the jury. Phillips v. Hazen, 122 Iowa, 475, 98 N". W. 305; Codd v. Seitz, 94 Mich. 191, 53 N. W. 1057; Groscup v. Downey, 105 Md. 273, 65 A. 930; Lanhart v. Bean, 161 N. W. 464, Iowa Sup. . Sec. 895. Question of ratification. Questions involving ratification should be submitted to the jury. Center v. Conglomerate Min. Co., 23 Utah, 165, 64 P. 362 ; Mc- Mullin v. Reighard, 92 A. 747, 246 Pa. 589; Maddox v. Harding, 135 N. W. 1019, 91 Neb. 292; West v. Kriby Lumber Co., 193 S. W. 172, Tex. Civ. App. . Sec. 896. Whether the broker was the procuring cause of the transaction. Whether the broker was in fact the procuring cause of the transaction entered into by the principal with the customer is properly left to the jury to determine. Smith v. Anderson, 2. Ida. (Harb.), 537, 21 P. 412; Colvin & Rinard v. Lyons, 96 P. 572, 15 Idaho, 180 ; Rounds v. Alle, 116 Iowa, 345, 89 N. W. 1098 ; Reid v. McNerny, 128 Iowa, 350, 103 N. W. 1001 ; Roth- enberger v. Schoningerg, 30 Ky. L. R. 1018, 99 S. W. 1150; Hosmer v. Fuller, 168 Mass. 274, 47 N. E. 94; Kinder v. Pope, 106 Mo. App. 506, 80 S. W. 315; Armstrong v. Ft. Edward, 159 N. Y. 315, 53 N. E. 1116; Smith v. McGovern, 65 N. Y. 574; Palmer v. Durand, 70 N. Y. S. 1105, 62 App. Div. 467 ; Reddin v. Dam, 64 N. Y. S. 611, 51 App. Div. 636 ; Condict v. Cowdrey, 19 N. Y. S. 699, 61 N. Y. Super. Ct. 315; Smith v. Smith, 1 PLEADINGS, PRACTICE, ETC. 747 Sweeney (N. Y.), 552; BicJcert v. Hoffman, 19 1ST. Y. S. 472; Bonwell v. Howes, 1 N. Y. S. 435; Shipman v. Freeh, 1 N. Y. S. 67; Burchfield v. Griffith, 10 Pa. Super Ct. 618; Van Tobel v. Stetson, etc., Mill Co., 32 Wash. 683, 73 P. 788; Willey v. Rutherford, 108 Wis. 35, 84 N. W. 14; Burden v. Briquilet, 125 Wis. 341, 104 N. W. 83; Goldsmith v. Coxe, 80 S. C. 341, 61 S. E. 555; Murray v. Curry, 7 C. & P. (Bug.) 584, 32 Exch. 771; Jemoney v. Tollman, 40 N. Y. Super. Ct. 436; McLaughlin v. Campbell (N. J. Err. & App. '09), 74 A. 530; Shead v. Louisiana Lumber Co., 182 111. App. 310; Kurtz v. Payne Inv. Co., 135 N. W. 1075, 156 Iowa, 376, pet. for re. over, but opin. mod., 137 N. W. 460; Seevers v. Cleveland Coal Co., 138 N. W. 793, 158 Iowa, 574, Ann. Gas. 1915 D, 188; Duke v. Graham, 143 N. W. 817, 163 Iowa, 272; BlaJceslee v. Peabody, 147 N. W. 570, 180 Mich. 408 ; Coffman v. Dyas Realty Co., 159 S. W. 842, 176 Mo. App. 692; Mason v. James M. Carpenter Realty Co., 179 S. W. 945, Mo. App. ; Young v. Millan, 183 S. W. 355, Mo. App. ; Peters v. Holmes, 45 Pa. Super. Ct. 278; Byrne v. Oms- berg, 164 N. Y. Sup. 674; Fawley v. Sheldon, 163 K W. 585, Iowa Sup- ; Ford v. Cole, 195 S. W. 661, Tex. Civ. App. ; Seampson v. Vanderwilt, 173 P. 297, 106 Kan. 199 ; M . N. Clark & Co. v. Monson, 166 N. W. 576, Iowa Sup. ; Rowland v. Progressive Inv. Co., 202 S. W. 257, Mo. App. ; E. S. Truitt & Co. v. Gardner, 203 S. W. 638, Mo. App. ; Boardman v. Courteen, 167 N. W. 814, 167 Wis. 625; Soper v. Deal, 175 P. 390, Kan. Sup. ; Balto. Car Wheel Co. v. Clink, 104 A. 359, Md. Sup. ; Smith v. Chapin Home for Aged & In., 171 N. Y. Sup. 745 ; Buck v. Woodson, 209 S. W. 244, Tex. Civ. App. ; Kisldk v. Roberts, 177 N". Y. Sup. 194; Berraff v. Bergmann, 174 N. W. 901, Wis. Sup. ; Murphy v. LinsTcy, 109 A. 412, Conn. Sup. ; Schmind v. Lacey, 178 N. W. 267, Neb. Sup. ; Barney v. Beakley, 224 S. W. 531, Tex. Civ. App. ; BasTcett v. Jones, 225 S. W. 158, Ky. Ct. App. . See Sec. 446. Sec. 897. Whether the contract given to the broker was ex- clusive. In an action to recover commissions for a sale of real es- tate, plaintiff alleged a contract whereby defendant agreed to 748 AMERICAN LAW EEAL ESTATE AGENCY. pay him a certain sum if he would find a purchaser for his property, and that he did so; defendant alleged that plaintiff had not the exclusive right to dispose of the property under the agreement, and that defendant had sold it himself. Held, to present a question of fact for the jury. Black v. Snook, 204 Pa. St. 119, 53 A, 648; Rothenburger v. Schoningerg, 30 Ky. L. E. 1018, 99 S. W. 1150; Cesana v. Johnson, 122 N. E. 444, Mass. Sup. ; Harris v. Millikan, 208 S. W. 633, Mo. App. . Where the authority is conferred on the agent by a written in- strument its construction is for the court. Grosscup v. Downey, 105 Md. 273, 65 A. 930 Sec. 898. Proper to take from jury when broker sold for less than instructions authorized. A broker hired to sell property at a certain price, can not recover commissions for effecting a sale at a lower price, and the appellate court held that the case was properly taken from the jury. Williams v. McGraw, 52 Mich. 480, 18 N. W. 227. See also Sec. 408. Sec. 899. Whether agent procuring mortgage with wrong description was guilty of negligence. In an action by a principal against her agent for negligence in procuring a mortgage to be executed in her favor in which the land was wrongly described. Held, that it should be left to the jury to say whether the plaintiff was guilty of contribu- tory negligence in not discovering the mistake, which was pat- ent upon the face of the mortgage. Munford v. Miller, 1 111. App. 62. See also Sec. 913. Sec. 900. Where the rate of compensation is not fixed a ques- tion for the jury. Where an agent has been employed to sell land at no fixed rate of compensation, the jury are to fix the value of his ser- vices in the premises from the work done ; and in fixing the amount, the rate usually paid professional land brokers for such services may be taken into consideration. Ruckman v. PLEADINGS, PRACTICE, ETC. 749 Bergholz, 38 N. J. L. 531; Burdon v. Briquilet, 125 Wis. 341, 104 N. W. 83. See also Sec. 513. Sec. 901. Where the claim of plaintiff to commissions is con- tested, has a right to go to the jury. In an action to recover $100 agreed to be paid for procur- ing a purchaser of certain property, plaintiff testified that de- fendant, to whom the owner of the property owed money, wished the property sold so as to get his money, and agreed to pay plaintiff $100 if he found a purchaser, no price being named; that plaintiff brought one L. to look at the property, but he refused to buy, when defendant asked $5,000 for it; other parties afterward procured L. to purchase at $2,700; plaintiff claimed that the sale was indirectly due to his efforts, and that the defendant had sold through other persons to keep from paying plaintiff; defendant testified that he had nothing to do with the sale after L. had refused to purchase at $5,000, and that he agreed to pay plaintiff if he procured a purchaser at that price; the persons who finally made the sale testified that the plaintiff had nothing to do with the sale. Held, that plaintiff had a right to go to the jury on the evidence. Kelso v. Woodruff, 88 Mich. 290, 50 N. W. 249 ; Monsseau v. Dorsett, 80 Ga. 566, 5 S. E. 780; Ferguson v. Glaspie, 38 Minn. 418, 38 N. W. 352; Coolican v. Mil & St. St. M. Ins. Co., 79 Wis. 471, 48 N. W. 717; Dickinson v. Hahn (S. D. Sup. '09), 119 N. W. 1034; Mutchnick v. Friedman, 120 N. Y. S. 375; Gibson v. Mo- Lane, 148 P. 288, 17 Ariz. 61; Ruppert v. Muelling, 155 N. W. 1039, 132 Minn. 33; Rosenweig v. Rabuiischek, 150 N". Y. Sup. 353, 166 App. Div. 448; Nevins v. Hughes, 84 S. E. 769, 168 N. C. 477; Stanley v. Whitlow, 168 S. W. 840, 181 Mo. App. 461; Hanan v. McLeod, 141 K W. 1130, 93 Neb. 783; Handley v. Shaffer, 59 S. 286, 177 Ala. 636 ; Worthan v. Stewart, 172 S. W. 855, 116 Ark. 294; Paulson v. Rourke,' 145 P. 711, 26 Colo. App. 488; McCombs v. Moss, 181 S. W. 907, 121 Ark. 533; Hamilton v. Hathaway, 133 S. W. 629, 152 Mo. App. 483 ; Duncan v. Tur- ner, 151 S. W. 816, 171 Mo. App. 661; Paries v. Sullivan, 152 S. W. 704, Tex. Civ. App. ; Cohen v. Ames, 91 N. E. 212, 205 Mass. 186; Nooning v. Miller, 165 S. W. 1119, 178 Mo. App. 750 AMEEICAN LAW BEAL ESTATE AGENCY. 297; Wood v. Foster, 181 111. App. 409; Roney v. Healy, 135 N. W. 959, 170 Mich. 46; Nelson, Lee & Green v. Daly, 163 N. Y. Sup. 788; Baker v. Bdkewell, 208 S. W. 844; Thomas v. Wychoff, 174 N. W. 26, Iowa Sup. ; Porter v. Cox, 225 S. W. 84, Tex. Civ. App. . Sec. 902. Where agent procured purchaser and two-eighth interest unpurchasable, whether entitled to full commis- sions. A real estate broker had found a purchaser at the price stipulated for land purported to be owned by his principal, and was then referred by him to other tenants in common, with whom he subsequently made terms at a higher price, ex- cept two-eighths interest owned by them, but did not disclose this to his first principal Held, there was no duty owing by the agent as to the outstanding two-eighths, and it was not in- cumbent upon him to inform his principal, and in a suit by the broker for his commissions against his original principal, he was entitled to go to the jury upon the question of fulfill- ment of the terms of the original contract. Black v. Barr, 14 Pa. Super. Ct. 98, 651. Sec. 902a. On breach by owner, whether broker entitled to full commission a question for the jury. Where defendant by a breach of contract prevented the payment of the purchase price of real estate, question whether plaintiff, as his sales agent, was entitled to full commission, under the con- tract, before 40 per cent, of purchase price was paid; held, ques- tion for the jury. Realty Bond & Finance Co. v. Point Richmond Canal & Land Co., 152 P. 433, 171 Cal. 238. Sec. 903. Question of allowing interest on claim for commis- sions is for the jury. The matter of allowing interest on a claim for commissions for producing a purchaser should be left to the discretion of the jury. Schamberg v. Auxier, 101 Ky. 292, 19 Ky. L. E. 548, 40 S. W. 911. PLEADINGS, PRACTICE, ETC. 751 Sec. 904. Evidence of continuing offer, acceptance and per- formance by plaintiff. In an action for services in selling an estate for the defend- ant, it appeared that the defendant told the plaintiff that he would give him a certain sum if he would obtain a purchaser, that the plaintiff, who was not a broker, neither did nor said anything at the time to show that he accepted the offer, but within a few days told J. S. that the defendant wanted to sell, and took him to see defendant, but did not find the de- fendant; and that afterwards J. S. bought the estate, but the defendant did not know till after the sale that the plaintiff had done anything to aid it. Held, that there was evidence for the jury of a continuing offer, of an acceptance and of a performance by the plaintiff of the contract thus formed. Born- stein v. Lane, 104 Mass. 214. Sec. 905. Whether the attorney in fact executed and delivered a certain paper to the broker. In an action by a broker for the recovery of commissions earned in procuring an exchange of real property, evidence held to require submission to the jury of the question whether the attorney in fact of the owner executed a certain paper and delivered it to the broker with the intention of authoriz- ing him to negotiate the transaction. Cody v. Dempsey, 83 N. Y. S. 899, 8C App. Div. 335. Sec. 906. In conflicting testimony as to a contract, the mean- ing thereof for the jury. In an action to recover a broker's commissions for a sale of real estate, the contract provided that on a sale the broker should be entitled to a commission of $150 "if title is taken," there was evidence that the broker procured a contract for the purchase of the property at a price satisfactory to defend- ants ; the purchaser did not take title, and the defendant urged the fact as a defense; the broker testified that at the time of his employment the defendant had not then acquired title, and that the clause "if title is taken" referred to the conveyance to the defendant by the prior owners. Held, that the question 752 AMERICAN LAW EEAL ESTATE AGENCY^ of the meaning of the contract was for the jury. Thill v. Schonzeit, 93 N. Y. S. 383, 104 App. Div. 151 ; Condict v. Cow- drey, 123 N. Y. 463, 25 N. E. 946; Lechnyr v. Germansky, 113 N. Y. S. 969; Weaver v. Richards, 156 Mich. 320; Schlegal v. Fuller, 149 P. 1118, Okl. Sup. ; Norman v. JEZZis, 143 P. 1112, 74 Or. 168; Dickinson v. #a7m, 119 N. W. 1034, 23 S. D. 65; Weaver v. Gaskins, 180 ill. App. 28; Hill v. Z>afcw, 143 N. W. 821, 162 Iowa, 103; Thompson v. Soule, 83 A. 1103, 109 Me. 286; Gordon v. First Univer. Society of Marlborough, 104 N. E. 448, 217 Mass. 30; Heimberger v. Eudd, 138 N". W. 374, 30 S. D. 289; Inman v. Brown, 147 S. W. 652, Tex. Civ. App. ; Paysant v. Candill, 154 P. 170, 89 Wash. 250. See sec. 1131. Sec. 906a. Question as to modification of contract for the jury- In an action to recover commissions for selling real estate, where it appears that the commissions were to be paid as certain installments of the purchase money were received, the case is for the jury, where the evidence, although contradictory, tends to show that after certain installments had been paid, the original contract between the seller and the purchaser had not been abro- gated, but had been modified, and in the modified form had been executed. Papagian v. Scott, 37 Pa. Super. Ct. 560. In an action by a real estate broker for commission on a sale, whether it could be inferred that a conversation between plain- tiff and defendant not only had reference to an extension of the option defendant had drawn up in favor of his lessee, a prospec- tive buyer procured by plaintiff, which provided for the payment of a commission to plaintiff, but also revoked the agreement that plaintiff, if he put through a sale, would be entitled to a broker- age of 5% ; held, a question of fact for the jury. Kislak v. Rob- erts, 177 N. Y. Sup. 194. Sec. 907. Whether broker did not act merely as sub-agent. In an action by a real estate broker for his commissions in securing a purchaser, evidence examined and held to require submission to the jury of the question whether the broker did PLEADINGS, PBACTICE, ETC. 753 not act merely as sub-agent of other brokers. J. B. Watkin's Ld. Co. v. Thetford (Tex. Civ. App. '06), 96 S. W. 72. Sec. 908. Error to direct verdict for defendant because hus- band did not join, should have been left to the jury. In an action by a real estate broker to recover compensa- tion for furnishing a purchaser for defendant's land, where a part of the consideration to be paid was an exchange of home- stead property owned by the customer, it was error to direct a verdict for defendant, on the ground that the contract could not be specifically enforced, for the reason that the husband did not join in the contract with the wife, who owned the land, nor in the offer to convey, where there was evidence tending to show that they both executed the contract as well as the deed offered in performance, and that they were ready and will- ing to perform, since such question should have been submit- ted to the jury. Hamill v. Baumhover, 110 Iowa, 369, 81 N. W. 600. Sec. 909. Which of rival brokers effected a loan. Plaintiff, a broker, called on one of a committee of two ap- pointed by a corporation to secure a loan for it, and stated that the loan could be obtained from a certain company, and that he had spoken to the company, and would expect a com- mission if defendant made the loan; the committee said that if another broker did not succeed by the next day, they would be glad to have plaintiff make the commission ; on the next day, the committeeman told plaintiff that the other broker was un- able to procure the loan, and plaintiff again stated the com- pany of which he had spoken; the committeeman stated that he wished information as to the matter of taxes, and plaintiff introduced to him a person who gave the desired information; said committeeman was in constant communication with his col- league, and testified that he communicated to him all mat- ters of interest in regard to the loan; the loan was finally ob- tained from the company suggested by plaintiff. Held, that plaintiff's right to a commission was a question for the jury. Rogers v. Evan. Bap. Ben. & Mis. So., 168 Mass. 592, 47 N. E. 754 AMERICAN LAW KEAL ESTATE AGENCY. 434; Cadigan v. Crabtree, 192 Mass. 233, 78 K E. 412; Fox v. Cammeyer, Inc., 156 N. Y. Sup. 1046, 93 Misc. Eep. 180; Mc- Laughlin & Co. v. Southern Hotel Co., 177 N. Y. Sup. 323. Sec. 910. Error to submit to jury where broker carried on no negotiations with the purchaser. Where, in an action by the assignee of a broker to recover commissions for a sale of real estate, plaintiff's assignor testified that he was acting for the purchaser when he approached defend- ant, and that, on the failure of these negotiations, he mentioned other prospective purchasers, but told defendant that they were his customers, and it was shown that plaintiff's assignor carried on no negotiations with the party who purchased the property, and did not meet the party until a week after the sale, it was error to submit the case to the jury. Whiteley v. Terry, 82 N. Y. S. 89, 83 App. Div. 197; Maddux v. St. L. Union Trust Co., 178 S. W. 669, 186 Mo. App. 138. Sec. 910a. Evidence held insufficient to submit to jury, not showing broker's employment. In a suit in which plaintiff claimed a commission for effecting a sale of oil and gas properties, evidence held insufficient to carry case to jury, not showing plaintiff's employment or defendant's agreement to make payments. Levering v. Paova Oil Co., 243 F. 553, 156 C. C. A. 251. Sec. 911. Whether failure to consummate sale was the fault of the principal. In an action by a broker for his commissions for securing a purchaser, evidence examined and held sufficient to take to the jury the question whether the failure of the consummation of the sale was owing to the default of the principal. Seidman v. Ran- ner, 99 N. Y. S. 862, 51 Misc. 10 ; Ingalls v. Smith, 145 P. 846, 93 Kan. 814; Knight v. Brown, 147 N. Y. Sup. 628, 162 App. Div. 438. PLEADINGS, PHACTICE, ETC. 755 Sec. 912. Whether the sub-agent concealed his relation from the owner. In an action by a real estate agent for commissions, the owner testified that when the agent's sub-agent introduced a purchaser, the latter stated he wished to deal direct with the owner, who then stated a less price than fixed in the contract of employment; the owner testified that the sub-agent and the purchaser stated that they had made no arrangement with the agent; that the sub-agent stated nothing about commissions to the agent; and that he (the owner) told the purchaser and sub-agent that, if the agent had sold the land, he would have to let it go; the sub-agent testified that he asked the owner if the latter would not have trouble with the agent about the commissions, to which the owner replied that he would not, as he was selling the farm ; the sub-agent testified that he told the owner he did not charge any commission, as he would get that from the agent; the purchaser substantiated the sub-agent's testimony; there was no evidence to show that the owner knew that the sub-agent was acting for the agent. Held, that the question whether the sub-agent concealed such fact from the owner should have been submitted to the jury. Mullen v. Bower, 22 Ind. App. 294, 53 N. E. 790. Sec. 912a. Whether the broker was acting for opposite party a question for the jury. The issue as to whether the broker was acting for the op- posite party should be submitted to the jury. Summa v. Dere- skiawicz (Conn. Sup. '09), 74 A. 906; Crawford v. Surety Inv. Co., 139 P. 481, 91 Kan. 748; Goldsberry v. Thomas, 165 S. W. 1179, 178 Mo. App. 334; Pulver v. Ainsworth, 205 111. App. 81. Sec. 913. Whether actual negligence of broker prevented a sale. In an action to recover commissions for a sale of land, where the evidence shows that the intended purchaser was able, ready and willing to perform, but defendant claims that plaintiff prevented the fulfillment of the agreement by defendant within the time specified in the contract, the question whether the negligence of plaintiff was the cause of defendant's failure to 756 AMEBICAN LAW REAL ESTATE AGENCY. perform is for the jury. Stauff v. Bingenheimer, 94 Minn. 309, 102 N. W. 694. See also Sec. 899. Sec. 914. Whether broker knew of minor's interest which caused failure of sale. In a suit between a broker and his principal involving the broker's right to a commission, whether the broker had knowl- edge of the minor's interest, which caused the failure of the sale, before he obtained a purchaser. Held, a question of fact for the jury. O'Neill v. Printz, 115 Mo. App. 215, 91 S. W. 174. Sec. 915. Whether broker acted in good faith a question for the jury. In an action by a broker for commissions for selling defend- ant's real estate. Held, that whether the plaintiff was acting in good faith for defendant's interest was a question for the jury. Roome v. Robinson, 90 N. Y. S. 1055, 99 App. Div. 143 ; Lichtenstein v. Mott, 91 N. Y. S. 57, 90 App. Div. 570 ; Lienwen v. Kline (Iowa '09), 120 N. W. 312; L'Ecluse v. Field, 139 N. Y. Sup. 383, 154 App. Div. 685; T. A. Hill & Son v. Patton & Schwartz, 160 S. W. 1155, Tex. Civ. App. ; Heath v. Chown- ing, 142 P. 1108, 23 Okl. 274; Paschall & Gresham v. Gillies, 75 S. E. 220, 113 Va. 643, Ann. Gas. 1913 E, 778; Thomas v. Mohn, 193 S. W. 924, Mo. App. ; Speer v. Dalrymple, 222 S. W. 174, Tex. Civ. App. . Sec. 916. The terms of the agreement with the broker to pro- cure a loan. In an action for commissions for securing a loan, where the evidence for plaintiff, though contradicted by defendant, tends to show an agreement to pay one per cent, on the amount of the loan to be secured by plaintiff, the question as to such agreement is for the jury. Carter v. Moss, 210 Pa. 612, 60 A. 310. Sec. 917. Where sale was made to customer after withdrawal from broker, it was error to submit to jury. In an action for commissions on a sale of real property, it appeared that the purchaser had been informed that defend- PLEADINGS, PRACTICE, ETC. 757 anfs property was for sale, and had written defendant, before he met plaintiff or saw his advertisement; that the letter was referred to plaintiff with whom the property was listed and he and the purchaser examined the property and had some con- versation about it, but agreed on nothing; that defendant then wrote plaintiff, "I desire to withdraw my property from the market for a period; I do not know yet how long;" that plain- tiff had never been authorized to sell the property for less than $5,400 net; that the purchaser conferred with defendant afterwards and bought it for $5,250. Held, that the evidence did not entitle plaintiff to go to the jury. Malonee v. Young, 119 N. C. 549, 26 S. E. 141. Compare Hill v. Wheeler, 2 Ga. App. 349, 58 S. E. 502. Sec. 921. Sec. 918. Where defendant promised plaintiff additional com- pensation if found satisfactory. In a suit to recover the reasonable value of services in ef- fecting an exchange of real estate, when the defendant set up that plaintiff had agreed to accept $500 for his services, but there was evidence tending to show that as an inducement for such agreement, defendant promised to pay plaintiff a further reasonable commission if he found the land satisfactory, it was proper to submit such issue to the jury. Blair v. Slosson, 27 Tex. Civ. App. 403, 66 S. W. 112. Sec. 919. Whether time for performance has been waived or contract continued. Whether there is evidence that the time given a real estate broker to procure a purchaser has been waived, or the contract has been continued, is for the jury. Ice v. Maxwell, 61 W. Va. 9, 55 S. E. 899; Arents v. Casselman (Va. Sup. '10), 66 S. E. 820; Weisells-Gerhart R. E. Co. v. Epstein, 137 S. W. 326, 157 Mo. App. 101 ; Smith v. Sharp R. E. Co., 77 S. 40, 200 Ala. 666. Sec. 920. Whether plaintiff attempted to mislead defendant. In an action to recover a commission for services in bring- ing about an exchange of land. Held, whether plaintiff at- tempted to mislead defendant upon a material matter con- 758 AMERICAN LAW JIEAL ESTATE AGENCY. nected with the transaction was for the jury. Featherston v. Trone, 82 Ark. 381, 102 S. W. 196; Farris v. Gilder (Tex. Civ. App. '09), 115 S. W. 645. Sec. 920a. Question as to whether defendant's defense was an afterthought was for the jury. Where, in an action by an assignee of a contract for the sale of land, made through a broker, against the principal for breach of the contract, the defense was that the contract had been procured through misrepresentations, the question as to how far a delay of a few weeks on defendant's part in retaining the purchase money, and her reading of the whole or part only of the paper before signing it, tended to show her defense to be an afterthought, were for the jury. Kurinsky v. Lynch, 201 Mass. 28, 87 N. E. 70. Sec. 921. Whether the owner acted in good faith in himself selling the property. On the trial of an action by real estate agents for commis- sions on a sale of property, it was error to award a non-suit, where the evidence showed that plaintiffs had defendant's prop- erty in their hands to sell on specific terms, and that, pend- ing negotiations between the agents and their customers, they were prevented from selling by the act of their principal in taking the matter into his own hands, and, without notice, sell- ing the property at a lower price to a customer procured by their efforts, as, in such case, the good faith of the parties, as well as whether the purchaser would have given the stipulated price, are questions of fact for the jury. Hill v. Wheeler, 2 Ga. 349, 58 S. E. 502; Bradly v. Blandin, 100 A. 920, 91 Vt. 472; Kirby Lumber Co. v. West, 220 S. W. 639, Tex. Civ. App. . Compare Sec. 917. Sec. 922. Whether a limitation of time was placed upon the contract. An owner agreed to pay a broker a specific commission on his procuring a purchaser of real estate; at a subsequent interview PLEADINGS, PRACTICE, ETC. 759 on the same day, when the prospective purchaser was urged to conclude the purchase he insisted on having more time ; the owner claiming that he expected another purchaser, said he would give the prospective purchaser a week's time within which to make up his mind. Held, that whether the owner placed a limitation on the contract with the broker to procure a purchaser was for the jury. Oliver v. Katz, 131 Wis. 409, 111 1ST. W. 509; Shortridge v. Raiffreian, 222 S. W. 1031, Mo. App. . Sec. 922a. Question as to authority of agent is for the jury. While the question of the authority of an agent is for the jury, when that is disputed, the court should declare whether a given act is in excess of the agenfs authority, so that, in an action for commissions for purchasing land for defendant, the court properly instructed that any payments made by plain- tiff to sellers, in excess of the amount limited by defendant, was without authority. Mahon v. RanJcin (Or. Sup. '09), 102 P. 608; Lamer v. Harve, 155 N. W. 427, 189 Mich. 249; McKinney v. Thedford, 166 S. W. 443, Tex. Civ. App. ; Gilliland v. Ellison, 137 S. W. 168, Tex. Civ. App. . Compare Sec. 695a. Sec. 923. Whether negotiations were abandoned and sale re- sulted from new. Evidence held sufficient to warrant submitting to the jury the question whether the negotiations through plaintiff were aban- doned and the sale ultimately made to the purchaser introduced by him was the result of entirely new negotiations. Walker v. Baldwin, 106 Md. 619, 68 A. 25. Sec. 924. Whether the contract with broker was rescinded. In an action to recover compensation under a contract for commissions to be paid plaintiff for selling defendant's land, whether or not the contract was mutually rescinded was for the jury. Larson v. Lorer (Wash. Sup. '08), 94 P. 109; Hutto v. Stough & Hornsby, 47 S. 1031, 157 Ala. 566. 760 AMEKICAN LAW BEAL ESTATE AGENCY. Sec. 925. Whether defendant purchased the property, though the deed was taken in name of wife. Evidence that defendant purchased the land and so was lia- ble for the services of plaintiff, to be paid for if defendant made the purchase. Held, sufficient to go to the jury, though the contract of purchase and the deed were taken in the name of defendant's wife. Block v. Lowe, 99 N. Y. S. 951, 51 Misc. 8. Sec. 925a. Evidence warranted submission to jury on ques- tion whether plaintiff was a joint purchaser. In an action by a land broker for commissions, evidence held to warrant submission to the jury whether plaintiff was a joint purchaser. Smith v. Fears (Tex. C. A. '09), 122 S. W. 433. Sec. 926. What is a reasonable time to find a purchaser. A broker employed by the owner to find a purchaser with- out any specification of time, has a reasonable time, which is for the jury to determine. Hurst v. Williams, 31 Ky. L. R. 658, 102 S. W. 1176 ; Oliver v. Katz, 131 Wis. 409, 111 N. W. 509. See also Sees. 611, 612. . Sec. 927. Whether compensation for collecting rents covered all of broker's services. Where, in an action for the services of a real estate agent in procuring defendant a tenant for her hotel, plaintiff claimed that his services were reasonably worth five per cent, of the rent for the term, evidence that defendant paid plaintiff five per cent, on the installments of rent was sufficient to require the sub- mission to the jury of the question whether the same was paid in full compensation for plaintiff's services, or a recognition that plaintiff was entitled to five per cent, of all the rents col- lected. Colloty v. Schuman, 70 A. 190, 75 N. J. L. 97. Sec. 928. Whether an owner dealing with a customer of an- other broker became liable to latter. Whether an owner employing several brokers to procure a purchaser dealt with knowledge of the facts through one bro- PLEADINGS, PEACTICE, ETC. 761 ker with a customer procured by another broker, and thereby became liable to the latter for the commissions. Held, under the facts, for the jury. Jennings v. Trummer, 52 Oregon, 149, 96 P. 874. Sec. 929. Whether the person with whom the owner con- tracted was an agent of the broker. In an action for commissions for procuring a purchaser for land pursuant to a contract between the alleged agent of the broker and the owner of the land, whether the person with whom the owner contracted was the agent of the brokers for listing the land in question. Held, under the evidence, a ques- tion for the jury. Ewing v. Lunn (S. D. Sup. '08), 115 N. W. 527. Sec. 929a. Improper to submit a question of law to the jury. Questions of ultimate fact only are to be submitted to the jury; the question under consideration is double. Whether a contract was entered into between the plaintiff and defendant is a mixed question of law and fact, and questions of law should never be submitted to a jury. Eilpatrick v. McLaughUn, 108 111. App. 463. Sec. 929b. Meeting of minds on contract of sale. Plaintiff, after negotiating for sale to S. of timber land, on which defendant had an option, in which S.'s only offer was $90,000 for such timber and that of certain other adjoining tracts, which offer defendant rejected, had a telephone talk with defendant, in which he said that he thought S. would give $90,000 for the timber under option, and defendant told him to sell if S. would do so. Plaintiff agreed to see S., and report to defendant by telephone. Later in the day plaintiff tele- graphed defendant: "S. will give $90,000 for timber, includ- ing the additional tracts * * * can't raise him a penny." Defendant then telegraphed plaintiff: "We accept S.'s offer; if he declines to stand up, we can do no more business with him." Held, that there was evidence to go to the jury that defendant's telegram was in reply to plaintiff's telegram, and 762 AMEBICAN LAW HEAL ESTATE AGENCY. not to the telephone offer, and that therefore there was a meet- ing of minds on the contract entitling plaintiff to commissions. Watson v. Paschall, 83 S. C. 366, 65 S. E. 337. See also Sec. 33. Under a contract by which broker was employed to procure a third party to undertake the sale of a large tract of land to nu- merous purchasers; held, there could be no recovery, where no contract with a third party was ever made, even if their minds did meet on the terms of a contract. Jameson v. U. S. Farm Loan Co., 210 F. 885, 127 C. C. A. 495, den. re., 206 F. 889, 124 C. C. A. 549. Sec. 929c. Questions determinable by juries. (1) In a broker's action for commission on sale which was not completed, whether there was an agreement as to the payment of a commission; held, a question for the jury. Worthen v. Stewart, 172 S. W. 855, 116 Ark. 294. (2) In an action for commission, evidence held sufficient to go to the jury, on the question whether a contract was made prior or subsequent to obtaining a license. Van Gilder v. Kamper, 192 111. App. 25. (3) In an action by a real estate broker to recover commission which he claimed was due him in furthering a sale, evidence held insufficient to go to the jury. Hall v. Ware, 148 S. W. 1197, Tex. Civ. App. . (4) In an action against a married woman and her husband to recover commission for producing a purchaser for her land, evidence held sufficient to carry to the jury the question whether the woman authorized the sale. Bailey v. Padgett, 70 S. 637, 195 Ala. 203. (5) Evidence held to make out a jury question, whether de- fendant, in making contract with plaintiff, acted for himself, or for an agent of his company, or for a certain railroad company. Myers v. Kilgen, 160 S. W. 569, 177 Mo. App. 724. (6) Evidence held to authorize submitting issue, whether bro- ker abandoned his contract before any sales were made. Elser v. Putnam Land & Dev. Go., 171 S. W. 1052, re. den., Id. 1200, Tex. Civ. App. . (7) Whether a broker employed to find a specific property for an intending purchaser brought about a purchase of property dis- PLEADINGS, PRACTICE, ETC. 763 closed by him; held, under the evidence, for the jury. Murphy v. Knights of Columbus Building Co., 135 S. W. 446, 155 Mo. App. 649. (8) Evidence held to require submission to a jury, of the ques- tion whether the broker .had performed his contract within a rea- sonable time. Tull v. Starmer, 176 S. W. 511, 188 Mo. App. 713. (9) In a suit for commissions for an alleged sale of certain lots, where the alleged contract of sale consists of letters, tele- grams, and telephonic conversations, the material question is, as to whether there was a meeting of the minds of the parties on the terms of the proposed sale, but there was a conflict in the evi- dence as to the conversations, the question was for the jury. Cul- oertson v. Mann, 120 P. 918, 30 Okl. 249. (10) In an action by a broker for compensation, the question whether the seller misrepresented his title, and was unable to de- liver the property free from undisclosed incumbrances ; held, for the jury. Lord v. Crane, 138 N. Y. Sup. 383, 78 Misc. Eep. 389. (11) Evidence held to present question for jury, whether note given by principal to broker was in extinguishment of commis- sion liability, or as mere evidence thereof. Harnwell v. J. D. Ar- nold & Co., 193 S. W. 506, Ark. Sup. . (12) Whether defendant told plaintiff broker that he could not secure his wife's signature to a conveyance, is a jury question in plaintiff broker's action for commission, where the defendant tes- tified he made such statement, and the broker denied it. Cain v. Masuretta, 162 K W. 287, 196 Mich. 464. (13) In broker's action for commission, whether written agree- ment between the parties had been given up by plaintiff so as to render it of no effect ; held, for the jury. Freeman v. Van Wage- man, 101 A. 55, N. J. . (14) In suit for commission, whether agent disclosed the name of alleged purchaser to owner of land; held, under the evidence, for the jury. Coppage v. Howard, 103 A. 439, 132 Md. 233. (15) In an action for a commission for negotiating a resale of land based on a written contract ; held, that the question of duress was for the jury. Snyder v. Samuelson, 167 N". W. 287, Minn. Sup. . (16) Whether plaintiff, suing for broker's commission, sus- tained the burden of proving that he had put and kept in force 764 AMERICAN LAW EEAL ESTATE AGENCY. defendant's exclusive brokers' contract, by making an effort to sell defendant's real property, was a question for the jury. How- ard & Brown Realty Co. v. Barnett, 206 S. W. 417, Mo. App. . (17) In real estate broker's action for commission for finding lessee, .evidence held to sustain submission to a jury of question, whether the minds of owner and procured lessee met upon a lease, and whether owner's refusal to execute lease was a breach. Good- Jcind v. 0. L. 8. Realty Corp., 173 N. Y. Sup. 482. (18) In broker's action on commission notes and to foreclose lien reserved in the deed, where broker's lien is shown by facts pleaded was inferior to vendors' lien for purchase price, vendors were entitled to show they had a lien superior to that of broker, and to have jury pass on such issue. Speer v. Dalrymple, 222 S. ;W. 174; Tex. Civ. App. . (19) In an action for commission on loan and abstract made by defendant, case held for jury under evidence making a prima facie case for plaintiff, and evidence tending to impeach him as a witness. Crain v. McKinley, 222 S. W. 495, Mo. App. . (20) In a realty broker's action for a sale commission, whether either or both of two conditions, that he must sell to some one other than the actual purchaser and that he must sell for $9,500, were a part of the contract; held, for the jury. Shortridge v. 'Raiffeisen, 222 S. W. 1031, Mo. App. . (21) In a broker's action for commission for producing a pur- chaser 'ready, able and willing to buy land, where the broker had leased the land for defendant owner, with knowledge of condi- tions of lease, and there was conflicting evidence on the issue, whether plaintiff had received assurances over the telephone from defendant that immediate possession could be given, as required by purchaser, notwithstanding the lease, that question was a mate- rial issue of fact for the jury. Cohogen v. Big Bend Land Co., 186 P. 1070, Wash. Sup. . (22) In a broker's action for commission against owner who, instead of selling the land to procured purchaser, had sold it to third party who, in turn, sold it to such procured purchaser, evi- dence held insufficient to warrant submission to jury, the question whether owner fraudulently sold land to third party as blind to PLEADINGS, PEACTICB, ETC. 765 deprive broker of commission. Lorton v. True, 216 S. W. 54, Mo. App. . Sec. 929d. Questions of law for the Court. Whether a contract between the owner of land and a principal made the payment of a commission to the agent contingent on the purchaser making the payments provided for by the contract, was a question of law for the court. Gransbury v. Saterbok, 133 N. W. 851, 116 Minn. 339. In an action by a real estate broker for compensation, where his recovery depends wholly on correspondence with the owner, it is the province of the court to determine the legal effect of the letters. Bond v. Eumbird, 85 A. 943, 118 Md. 650. Construction of letters written by certain heirs to their attor- ney, authorizing him to sell certain real property; held, for the Court. Martin v. Crumb, 142 N. Y. Sup. 1096, 158 App. Div. 228; rear, and app. to Ct. App. den., 143 N. Y. Sup. 1130, 158 App. Div. 939, and judg. rev., Ill N. E. 62, 216 1ST. Y. 500. In an action by a broker who was to receive his commissions from the vendors, against a purchaser for breach of his agreement not to purchase through another; evidence held not to show, as a matter of law, that the broker did not exercise good faith toward the purchaser. Foss v. 2V. Y. Gen. & H. B. R. Co., 146 N. Y. Sup. 930, 161 App. Div. 681, judg. aff., 112 N. E. 1059, 217 N. Y. 727. Where, though one count in petition for broker's commission raised the issue of quantum meruit, the only evidence of reason- able value was received over plaintiff's objection for a limited purpose, failure to submit such issue ; held, not error. B. F. Loos Co. v. Herr, 166 N. W. 637, Iowa Sup. . CHAPTER XVI. INSTRUCTIONS TO JURIES. Sec. 930. Instructions must not assume as proved, matters which are in issue. Instructions must not assume as proved, matters which are in issue in the case. Swigert v. Hawley, 140 111. 186, 29 N. E. 883 ; Cassady v. Carrahan, 119 Iowa, 500, 93 N. W. 386 ; Rich- ardson v. Hoyt, 60 Iowa, 68, 14 N. W. 122; Benedict v. Pell, 74 N. Y. S. 1085, 70 App. Div. 40; Gerding v. Haskin, 21 N. Y. S. 636, 2 Misc. 172; Graves v. Dill 159 Miss. 74, 34 N. E. 336; Jester v. Lee, 200 111. App. 183. Sec. 931. That defendant was liable where compensation for services was expected. It was proper to instruct the jury that defendants were lia- ble for the value of plaintiff's services, if they were of such a character and rendered under such circumstances as would indicate to a reasonably intelligent business man that they were not performed gratuitously, and that compensation was ex- pected, the instruction not assuming that plaintiff had ren- dered all the services for which he asked compensation. Miller v. Early, 22 Ky. L. R. 825, 58 S. W. 789. See also Sec. 956a. Sec. 932. Instructions must conform to the evidence in the case. Instructions must be in conformity with the evidence ad- duced in the case, and instructions which impliedly assume the existence of evidence which was not given are erroneous. Leech v. demons, 14 Colo. App. 45, 59 P. 230; Davis v. Morgan, 96 Ga. 518, 23 S. E. 417 ; Games v. Howard, 180 Mass. 569, 63 N. E. 122; Cadigan v. Crabtree, 179 Mass. 474, 61 N. E. 37, 55 L. R. A. 77 ; Hughes v. McCullough, 39 Ore. 372, 65 P. 85 ; Taylor V. Cox (Tex. Supreme '91), 16 S. W. 1063; Lawson v. Thomp- 766 PLEADINGS, PRACTICE, ETC. 767 sow, 10 Utah, 462, 37 P. 732. Instruction not objectionable as submitting an issue not pleaded. Baldwin v. Smith (Tex. Civ. App. '09), 119 S. W. 111. Sec. 933. Defendant sued by broker entitled to instruction which assumes he acted as such. A defendant sued by a broker for commissions is entitled to an instruction which assumes plaintiff to have acted as broker, where the declaration alleged that defendant agreed to pay plaintiff a fixed sum if plaintiff, as a ''broker," would secure a sale to defendant, and plaintiff testified that he acted as a broker. Carpenter v. Fisher, 175 Mass. 9, 55 N. E. 479. Sec. 934. An instruction should be given, on request, that broker must have been the procuring cause of sale. An instruction that the broker must have been the procuring, cause of the sale, in order to entitle him to a commission, should be given on request, where that point is in issue. Hinds v. Mc- Intyre, 89 111. App. 611; Munson v. Carlstrom (Iowa Sup. '09), 119 N. W. 606. Sec. 446. Sec. 934a. Error to charge under contract involved that if plaintiff was procuring cause of sale he was entitled to recover commissions. A broker sued to recover commissions for selling defendant's real estate, and testified that during defendant's absence he exhibited the premises to one who, after defendant's return, purchased for $2,700; defendant testified that it was agreed that the broker was to receive no commission unless he sold for $3,000 during defendant's absence. Held, that it was error, under the evidence, to charge that if the plaintiff was the pro- curing cause of the sale he was entitled to recover. Largeant v. Story (Tex. Civ. App. '01), 61 S. W. 977. Sec. 934b. Instructions erroneous for omitting that plaintiff should be found to be the procuring cause of the sale. Real estate brokers, in their complaint for compensation, alleged that defendant gave them the exclusive agency to sell a certain tract of land, their compensation to be a percent- age on the price obtained, and that they procured a purchaser 768 AMERICAN LAW REAL ESTATE AGENCY. to whom defendant sold. Defendant pleaded a general denial, and especially, that plaintiffs' agency, if any, was revoked be- fore they began to negotiate with the purchaser. Held, that an instruction that if plaintiffs had an exclusive agency when they began to negotiate with the purchaser, they were entitled to recover, was erroneous, as not including the necessity that they should have been the procuring cause of the sale, thereby failing to conform to the issues made, and even had plaintiffs alleged that defendant, by his sale, had prevented plaintiffs from consummating their sale, the omission would still have been fatal to the instruction. Jackson v. Stephenson (Tex. Civ. App. '08), 114 S. W. 848; Eussell v. Poor (Mo. App. '08), 119 S. W. 433. Sec. 935. Instruction that broker should bring buyer and sell- er together and effect a purchase. Where no other instruction defining a broker's duty is given, it is error to refuse an instruction that the duty of a broker is to bring the buyer and seller together and effect a purchase of the property according to the terms agreed on by the seller and the broker, and that the latter is not entitled to a com- mission for an unsuccessful effort to effect a sale. West v. Demme, 128 Mich. 11, 87 N. W. 95. Compare Sec. 509. Sec. 936. Where instructions cover case generally, failure as to particular detail not error. If the instructions cover the case generally, the failure to instruct concerning particular details is not error, in the ab- sence of a request to specifically charge on that point. Bickart v. Hoffman, 19 N. Y. S. 472; Keyser v. EeiUy, 191 Pa. St. 271, 43 A. 317, 4* Weekly Not. Cas. 240. Sec. 937. Court not bound to use the identical language, if substantially the same it is sufficient. The court is not required to use the same language in which the charge offered is expressed ; it is sufficient if the instruction given is essentially similar to that requested. Walker v. Rogers, 24 Md. 237. PLEADINGS, PRACTICE, ETC. 769 Sec. 938. Employing the word "furnished" instead of "pro- cured" not a departure. Where defendant agreed to pay commissions for sales of land to customers "procured" by plaintiff, an instruction that de- fendants were liable if plaintiffs "furnished" customers, is not a departure from the issues made. Boyd v. Watson, 101 Iowa* 214, 70 N. W. 120. Sec. 939. Where evidence on given fact is undisputed, the court should so instruct. Where the evidence on a given fact is undisputed the court should so instruct the jury. O'Callahan v. Boeing, 72 Mich. 669, 40 N. W. 843. Sec. 940. Instructions are to be considered as a whole, and unimportant defects are not fatal. Instructions are to be considered as a whole, and if they are correct and sufficient, defects in unimportant particulars are not necessarily fatal. Blake v. Stump, 73 Md. 160, 20 A. 788, 10 L. R. A. 103; French v. McKay, 181 Mass. 485, 63 N. E. 1068; Walton v. Cheesebrough, 167 N. Y. 606, 60 N. E. 1121; Bickart v. Hoffman, 19 N. Y. S. 472; Wilson v. Nuber (Tex. Civ. App. '02), 68 S. W. 800. Sec. 941. Instruction proper as to burden of proving a par- ticular fact in issue. It is proper to instruct as to who bears the burden of proof and an instruction that conduct which imputes bad faith upon the part of an agent to sell real estate must be shown by the party claiming it, is proper. Buckingham v. Harris, 10 Colo. 455, 15 P. 817 ; Harrison v. Pusterska, 97 Iowa, 166, 66 N. W. 93. Sec. 942. Instruction erroneous that burden is on party to prove a fact not denied In charging the jury it is error to place the burden on a party to prove facts which are not denied. Anderson v. Brad- ford, 102 Mo. App. 433, 76 S. W. 726. 770 AMEBICAN LAW HEAL ESTATE AGENCY. Sec. 943. Instruction properly refused, as too broad. Where plaintiff averred that he was to have all proceeds of sales over the net price and defendant denied this, and counter- claimed that plaintiff agreed to sell the lots for one dollar per front foot; that plaintiff had paid himself all he had earned out of the proceeds collected and owed a certain balance of such proceeds to defendant. Held, that a charge that plaintiff had the burden of showing that he had agreed for larger pay than one dollar per front foot or was entitled to any excess was too broad. Glover v. Henderson, 120 Mo. 367, 25 S. W. 175. Sec. 943a. Modification of instruction to jury. In an action on a contract to recover compensation for selling real estate, instruction that defendant had a right to revoke the contract and deprive plaintiff of compensation; held, properly modified so as to require such revocation to have taken place prior to the execution of a sale. Watson v. Vollentine, 183 111. App. 559. Sec. 944. Error to leave compliance with contract to jury* that being a question of law. In an action by a broker to recover commissions for a sale of land, an instruction leaving it to the jury to determine whether the plaintiff had complied with his contract so as to entitle him to recover commissions was error, that being a question of law for the court, the contract being in writing. Goodson v. EmUeton, 106 Mo. App. 77, 80 S. W. 22. Sec. 945. Error to instruct that broker was entitled to com- missions on finding purchaser, when principal's approval was necessary. Where a contract of sale was to be approved by the owner, an instruction that plaintiff was entitled to commissions if lie found a purchaser, though defendant refused to carry out the trade, was erroneous. Coin v. Hess } 102 Iowa, 140, 71 N. W. 218. Sec. 946. Instruction based upon wrong hypothesis is errone- ous. In an action by a broker for commissions lost, the plaintiff alleged that defendant gave plaintiff the exclusive right ta PLEADINGS, PRACTICE, ETC. 771 sell the property for $3,000, defendant reserving only the right to sell the property himself for not less than that sum; that plaintiff procured a purchaser, who was ready and ahle to purchase for that sum, but that defendant previously sold the property for $2,500; defendant admitted the contract, except that he bound himself not to sell for less than $3,000, which he denied, and admitted that he sold the land as alleged. Held, that an instruction that if there was a contract between the par- ies by which plaintiff procured a purchaser, "defendant not hav- ing sold the land," then plaintiff would be entitled to recover, was erroneous, as based on the hypothesis that defendant had not sold the land, which was not in issue, defendant having admitted that he sold the land ; the instruction thereby practically amounted to directing a verdict for the defendant. Hughes v. McCullough, 39 Ore. 372, 65 P. 85; Witt v. Schwartz (Tex. Civ. App. '09), 120 S. W. 1039; Harris v. Morton & Co., 167 N. Y. Sup. 80;. 101 Misc. Rep. 398. Sec. 947. Instruction held erroneous that placed undue stress upon payment as indicating the principal. On the question as to whether W. acted as agent for plain- tiff or defendant, a charge that, in this connection the jury should consider from whom W. got his pay, whom he asked to pay him, and the fact that W. had authority to sell the lot in question, is erroneous, as giving undue prominence to the fact as to who paid for the service, and allowing the jury to infer previous authority to sell from the fact of payment for serv- ices in selling. Williamson v. Tyson, 105 Ala. 644, 17 S. 336. Sec. 948. Instruction that, if by the terms of the contract, the broker had nothing to do, there was no consideration for the promise, is proper. In an action for real estate commissions, defendant is entitled to an instruction that if, by the terms of the contract, it is shown that there was nothing for the brokers to do, then the promise to pay them commissions was without consideration and void. Wolff v. Denboskey, 74 N. Y. S. 565, 66 App. Div. 428, 36 Misc. 643. 778 AMEBICAN LAW EEAL ESTATE AGENCY. Sec. 949. An instruction is objectionable if jury not directed that belief must rest on evidence. An instruction is objectionable if the jury are not directed that their belief must be based on the evidence. Champion Iron Fence Co. v. Bradley, 10 111. App. 328. See also Sec. 1038. Sec. 950. Instruction that plaintiff was entitled to recover $1,000, erroneous, where nothing to show brokers got it. In assumpsit by a principal against real estate brokers for money had and received, an instruction that if the brokers sold the principal's farm for $11,000, but accounted to him only for $10,000, the principal is entitled to receive $1,000, is erroneous, where there is evidence that the purchaser, with the principal's knowledge, bought from one who had a prior option on the land, and there is no evidence that the defend- ants ever received the $1,000. Henshaw v. Wilson, 46 111. App. 364. Sec. 951. Instruction properly refused which contemplated that no leases were made except through brokers. In an action to recover brokerage for effecting a lease of real property, plaintiff did not allege that he had been em- ployed by defendant, but alleged that defendant accepted plain- tiff's services with knowledge that they had been rendered. Held, that it was proper to refuse plaintiff's request to charge that, while the owner was entitled to know that the brokers had been instrumental in sending a tenant, yet, when he knows that the tenant had received information of his intention to let and his price, the owner is bound to inquire where the ten- ant got the information, as such instruction presupposes that leases are never made without the intervention of brokers, and that no information could be received as to what property was to be let, except through brokers. Tinkham v. Knox, 21 N. Y. S. 954, 2 Misc. 579. Sec. 952. Instruction that plaintiffs could not recover unless they secured a purchaser at price stated, erroneous. In an action by real estate agents to recover commissions, it was error to instruct the jury that, if defendant agreed to give plaintiffs a particular sum in case they sold his farm at PLEADINGS, PEACTICE, ETC. 773 a specified price, plaintiffs could not recover unless they sold or procured a purchaser for the property at the price speci- fied, defendant having sold the property to the purchaser pro- cured by plaintiffs, for a price less than that specified, and to that extent availed himself of plaintiff's exertions. Wetzell v. Wagoner, 41 Mo. App. 509. Sec. 953. Instruction that bringing parties together is not enough, unless efficient cause of sale, is incorrect. In an action by a broker to recover commissions, a charge that, "merely to bring the buyer and seller together is insuffi- cient to entitle an agent to a commission, unless it is the effi- cient cause of the sale," is incorrect, and properly refused. Bowser v. Field (Tex. Civ. App. '91), 17 S. W. 45. Sec. 953a. Error in charge omitting that broker must be the procuring cause of the sale. The error in an instruction given at the instance of plain- tiff, in' an action for commissions for procuring a purchaser of real estate, authorizing a recovery on a finding that plain- tiff was employed to procure a purchaser, and introduced a customer to whom a sale was subsequently made, arising from the failure to require a finding that the broker was the pro- curing cause of the sale, was not cured by a charge, given at the instance of the defendant, that before judgment could be rendered for plaintiff, he must show that through his services one was induced to purchase the property, since the two in- structions were contradictory. Eussell v. Poor (Mo. App. '08), 119 S. W. 433. Sec. 954. Instruction to find for broker, if found to be the procuring cause of sale, is correct. An instruction to find for the broker, if it was through the efforts and information given by him that the owner and the purchaser were brought together as seller and buyer, given in connection with a charge that the broker was entitled to com- missions if he afterwards became the procuring cause of such sale, stated the correct law of the case. Bowser v. Field (Tex. C. A. '91), 17 S. W. 45. 774 AMEBICAN LAW EEAL ESTATE AGENCY. Sec. 954a. Improper modification of charge asked for by de- fendant. In an action by real estate brokers for commissions a re- quest to charge that plaintiffs could not recover if the pros- pective purchasers had, in fact, and in good faith, abandoned their negotiations for the purchase through plaintiffs before the matter was taken up with the purchasers by another per- son, was improperly modified by adding a further condition to the defeat of plaintiffs' recovery, that plaintiffs had led de- fendants, through their attorney, to believe that plaintiffs had abandoned all efforts to make a sale, and had abandoned the idea of association with the transaction any further; since, to warrant a recovery for plaintiffs their services must have been the efficient cause of the sale, regardless of their abandonment of the transaction, and defendants, as well as plaintiffs, could be the moving party in the cancellation of the agency. Young v. HuUard, 154 Mich. 218, 15 D. L. N. 725, 117 N. W. 632. Sec. 955. Instruction that if broker found a purchaser for property on terms stated, entitled to commissions, proper. A real estate agent sued on a contract for commissions for a sale of land; the contract was made a part of the complaint, but was not introduced in evidence; the court charged that as plaintiff had undertaken to effect a sale or procure a pur- chaser, in accordance with the contract, it was necessary for him to prove that he had found a purchaser who was willing to take the property on the terms provided in the contract. Held, that as the charge, when referring to the complaint, was clearly correct, and the court had evidently given it un- der the impression that the contract was in evidence, plaintiff could not be heard to object. Hegman v. Hood, 3 Ind. App. 456, 29 N. E. 1141. Sec, 955a. Instruction that if broker was efficient cause of sale entitled to commission, held proper. An instruction that if plaintiffs were employed to defendant to effect an exchange or sale, and were the efficient and procuring cause of the sale, they were entitled to commission, no matter PLEADINGS, PEACTICE, ETC. 775 how slight the service; held, correct and not misleading. Begelin v. Lottgren, 207 111. App. 409. Sec. 956. Instruction premature, as jury should first find that agent was authorized to act for principal. In an action by a real estate broker to recover on a special contract for procuring a purchaser, the contract having been made by one alleged to be the agent of the owner, and the authority of the agent being one of the issues, the court prop- erly refused an instruction stating that the plaintiff was en- titled to recover if he was employed by the owner, or some one acting for her, without stating that such person must be authorized to so act. Funk v. Latta, 43 Neb. 739, 62 N. W. 65. Sec. 956a. Charge in case of implied contract held correctly given. In an action for commissions, it was admitted that defend- ant sold the property, and the court instructed that if plain- tiff was a means of procuring a purchaser for the property, and defendant agreed to pay a reasonable commission for his services, or permitted plaintiff to render services under circum- stances which would lead a reasonably prudent man to believe that plaintiff expected compensation therefor, the jury should find for the plaintiff. Held, that the instruction properly sub- mitted the question whether the defendant agreed to pay plain- tiff for his services, or permitted him to render them under circumstances leading a reasonably prudent man to believe com- pensation was expected. Bullock v. Menninger (Ky. Ct. App. '10), 125 S. W. 256; Brady v. Richey & Casey, 202 S. W. 170, Tex. Civ. App. . See also Sec. 931. Sec. 957. Instruction that if plaintiff performed some service though he did not sell, entitled to some compensation, proper. In an action to recover for the value of services as agent in selling real estate, when there is testimony tending to show that the plaintiff rendered some service, but did not effect a sale, if the jury believed that he rendered some service, an instruction that he is entitled to recover on a quantum meruit 776 AMERICAN LAW REAL ESTATE AGENCY. is not improper. McMurtry v. Madison, 18 Neb. 291, 25 N. W. 85. (This is contrary to the general rule, that the agent stakes his efforts upon success, and if unsuccessful loses all.) Sec. 958. Instruction is erroneous, that there is room for a verdict of no cause of action, where defendant admits broker performed services. Where defendant admits that plaintiff was instrumental in effecting the sale, but disputes the value of the services, it is error to charge the jury that there is room for a verdict of no cause of action. Scribner v. Hazeltine, 79 Mich. 37, 44 N. "W. 618. Sec. 959. Instruction that if agreement was as claimed by defendant plaintiff entitled to verdict, improper. Plaintiff having brought defendant and a purchaser together, a sale was effected by them for $10,000; plaintiff claimed that he was authorized to sell for this amount and for a commission thereon, and after testifying to this agreement, he testified that just before and after defendant made the sale he told plaintiff that he would make it satisfactory to him and pay him for his services; defendant's claim was that plaintiff was to receive as commissions only such sum as he should obtain in excess of $10,000. Held, that there was nothing in the case which entitled plaintiff to an instruction that, if the agreement was, in the first place, as claimed by defendant, still plaintiff was entitled to a verdict if he consented to the sale for $10,000, and the defendant thereupon renewed his promise to pay the commission. Morehouse v. Remsen, 59 Conn. 392, 22 A. 427. Sec. 960. Instruction on contract, either joint or several, that defendant only liable for share, properly refused. Where the evidence shows that defendant's contract to pay plaintiffs a certain commission for a sale of land, is either a joint contract with that of other owners of the land, or is an individual contract, the court properly refused to charge that defendant is only liable for his share of the commission to the extent of his individual interest ; their liabilities can not be ap- portioned. Mosseau v. La Roche's Sons, 80 Ga. 568, 5 S. E. 780. PLEADINGS, PRACTICE, ETC. 777 Sec. 961. Instruction that if jury find contract made and lots sold, plaintiff entitled to commissions, proper. In an action for commissions on sales of lots, an instruc- tion, after stating the respective claims of the parties, that if the jury find that the arrangement alleged by plaintiff was made and after that arrangement defendant's lots were sold plaintiff is entitled to recover the amount claimed by him as commissions, is proper, there being no question as to the price for which the lots were sold. Ockenfells v. Moeller, 79 Mich. 314, 44 N. W. 790. Sec. 962. Instruction that broker should have exercised the greatest care, requires too high a degree of care. In an action on notes defendant pleaded in reconvention that she had given plaintiff certain money to loan for her, but which, through his negligence, she had lost ; the evidence tended to prove that plaintiff had received a commission from the bor- rower for making the loan. Held, an instruction that if plain- tiff received a profit from the lending he was bound to use the greatest degree of care that an ordinarily prudent person would exercise under like circumstances, was erroneous, as requiring too high a degree of care; plaintiff, as bailee or broker, being only required to exercise the care of an ordinarily prudent per- son. Cdruthers v. Boss (Tex. Civ. App. '01), 63 S. W. 911. Sec. 963. Instruction that it was incumbent on agent to show land worth the price error. Plaintiff authorized defendant, who was a broker, to sell a tract of land, and to contract and advertise at plaintiff's ex- pense; it was afterwards agreed that the advertisement should be discontinued, and plaintiff told defendant that if he got a piece of property to sell for which plaintiff could turn in his property as part payment he desired to know it; afterward de- fendant and others obtained an option on some land, and notified plaintiff, who, on being told of the price which defend- ant and his associates were to pay for it, purchased it, after examination, giving his land as part payment; later, plaintiff sued on the ground that defendant was his agent and liable to 778 AMERICAN LAW REAL ESTATE AGENCY. him for the profit. Held, that the business was in no sense confidential, and it was error to instruct that it was incumbent on defendant to show that when plaintiff purchased he had knowledge of all the facts, and that the land was worth what he paid for it. Pomeroy v. Wimer, 167 Ind. 440, 78 N. E. 233, 79 N. E. 446. Sec. 964. Instruction that although agent could sell land at price fixed, did not excuse from selling at best price ob- tainable, proper. In an action against brokers to recover money retained by them out of the purchase price, an instruction that though plaintiff gave defendants authority to sell his land for a spe- cific sum per acre, such authority did not excuse the defend- ant from selling for the best obtainable price, was not errone- ous, on the rule that it made the agent exceed the instruc- tions of his principal, and made him liable if he did not. Harri- son v. Lakeman, 189 Mo. 581, 88 S. W. 53; Light enstein v. Mott, 91 N. Y. S. 57, 99 App. Div. 570. See also Sec. 290. Sec. 965. Instruction assuming from purchaser giving check to seller, who turned it over to broker, that latter received it from purchaser, proper. Where, in an action to recover from brokers a portion of the purchase money retained by them for effecting a sale of plaintiff's land, the evidence showed that the purchaser gave his check to plaintiff, and he turned it over to defendants, who subsequently gave plaintiff their check, an instruction as- suming that defendants received the money from the purchaser was not erroneous. Harrison v. Lakeman, 189 Mo. 581, 88 S. W. 53. Sec. 966. Instruction that if broker misread contract to prin- cipal to deceive, not binding on him, proper. Where a land owner sued his brokers, who had effected a sale, to recover a portion of the purchase money which had been retained by them, on the ground that the contract was PLEADINGS, PRACTICE, ETC. 779 not binding on him, because he had been fraudulently induced to enter into it by the act of the defendants in not correctly reading the contract to him, and also on the ground that the contract had been qualified by the alteration thereof by de- fendants, an instruction, that if plaintiff signed the original contract, defendants in reading it to him having fraudulently deceived him, then the contract was not binding, was not er- roneous, on the theory that the action was not one for the cancellation of a contract. Id. Sec. 967. Instruction that contract was severable, and bro- ker entitled to compensation for one deal, proper. Evidence held conclusive that the contract by which appel- lant agreed to pay a commission of one dollar per acre for procuring contemplated exchanges of real estate for other prop- erty was not an entire but a severable contract; the respond ent was entitled to his commissions upon effecting one of the contemplated trades, and the court did not err in so instruct- ing the jury. Goodspeed v. Miller, 98 Minn. 457, 108 N. W. 817. See also Sec. 496. Sec. 968. Instruction that propositions were substantially the same, erroneous, being by different brokers and different. In an action by a real estate broker for commissions, it appeared that plaintiff obtained for defendant's property, val- ued at $90,000, an offer consisting of an equity in certain apartment houses estimated at $60,000, and an equity in cer- tain dwelling houses estimated at $30,000, which offer was de- clined; that plaintiff thereafter obtained from the same per- son an, offer of an apartment house, and a mortgage for $30,000 on the property to be taken from defendant, which was also declined; and that another broker, in ignorance of what plain- tiff had done, subsequently obtained from the same person the offer of an equity in an apartment house estimated at $15,000, and mortgages for $85,000 on the property taken of defendant, which defendant accepted. Held, that the offer so accepted was substantially different from either of those submitted by plaintiff, and therefore an instruction, on the theory that they 780 AMERICAN LAW REAL ESTATE AGENCY. were substantially the same, was misleading. Crowningshield v. Foster,. 169 Mass. 237, 47 N. E. 879. Sec. 969. Instruction proper that if contract was altered before purchaser executed it, there was no meeting of minds. Where a broker, in an action for services in procuring de- fendant a purchaser for land, claimed that both parties had signed duplicate contracts of sale, and defendant claimed that after signing the papers the purchaser took them and signed only after making material alterations therein, and that he thereupon refused to re-execute the contracts as altered, and that they were never delivered, it was error to refuse an in- struction that if, after defendant executed the contracts, they were altered before the purchaser executed them, and were never subsequently re-executed, there was no meeting of minds. Bruce v. Hurlbut, 66 N. Y. S. 1127, 54 App. Div. 616 ; Ballou v. Bergvendsen, 9 N. D. 285, 83 N. W. 10. See also Sec. 996. Compare Sec. 485. Sec. 970. Instruction erroneous that broker to find purchaser is entitled to commissions, though paid by purchaser. Plaintiff was employed by defendant to find a purchaser for lands, and was also under an agreement with certain prospec- tive purchasers by which he was to participate with them in the advantages of the purchase if made ; he induced these pur- chasers to inspect the lands, and on their objecting to the price, defendant, unknown to them, included the plaintiff's commissions from defendant, urging them to make the pur- chase, and finally induced them to agree to do so; afterwards, when they discovered the dual character of plaintiff's agency, they refused to consummate the contract and defendant re- fused to pay plaintiff commissions, whereupon he brought suit therefor. Held, that a charge that if defendant employed plaintiff to find a purchaser at a price which would be satis- factory to defendant and the purchaser, defendant could not defeat the action by proof that plaintiff was also to be paid for his services by the purchaser, was erroneous. Green v. Southern States Lumber Co., 141 Ala. 680, 37 S. 670. See also Sec. 314. PLEADINGS, PHACTICE, ETC. 781 Sec. 970a. Erroneous instruction to jury as to waiver. Where the only testimony as to whether or not there was a modification of the agreement of defendant that plaintiff, a real estate agent, should have a commission if a trade of defendant's property was made with S., was defendant's tes- timony, contradicted by plaintiff, that after the first attempt at a trade had failed, he had a conversation with plaintiff, in which plaintiff said that S. would not trade, and that they would drop the deal, and that if defendant disposed of the property himself, or through another agent, he did not expect a commission; that he only expected one if he closed the deal himself; the only question for the jury was whether such con- versation occurred, as, if it did, plaintiff would be presumed to have understood it, so that, the sale having been consum- mated by another agent, it was error to instruct that for de- fendant to escape liability to plaintiff he must show, not only that he understood plaintiff had waived his claim to a com- mission, but also that plaintiff understood that he was to waive such claim. Romans v. Thew (Iowa Sup. '09), 120 N. W. 629. Sec. 971. Instruction properly refused that if property was brought to defendant's notice in advance of plaintiff's, latter not entitled to recover share of commissions. Where, in an action by a real estate broker to recover from defendant one-half of the commissions received by the latter on a sale of certain property for the sale of which the plain- tiff was agent, the complaint alleged that plaintiff brought the property to defendant's notice, that the latter agreed to co- operate with plaintiff in the sale of the property, and in con- sideration of his bringing the same to defendant's notice and of his services, defendant agreed to pay plaintiff one-half of the commissions received on the sale of the property, the court properly refused to charge that if the premises in question were brought to defendant's notice prior to the plaintiff's bringing notice thereof to defendant, he could not recover on the con- tract. Alden v. Robinson, 98 N. Y. S. 675. Sec. 972. Instruction to find for defendant error, where plaintiff shows he induced buyer to make offer accepted. In an action for commissions for the sale of real estate, the only evidence introduced was by the plaintiff, which showed 782 AMERICAN LAW REAL ESTATE AGENCY. an employment to sell land at a fixed price; that the agent in- duced the purchaser to make an offer for it; that the offer was finally accepted upon a sale of the property at auction on the terms of the purchaser's offer to the agent; there was no no- tice of discharge from further services given; and the ser- vices were worth a certain; sum, as fixed by the contract of employment, which was proved. Held, that the court erred in giving peremptory instructions at the close of plaintiff's tes- timony to find for the defendants. West v. Prewitt, 19 Ky. L. R. 1480, 43 S. W. 467; Muskowitz v. Miller, 113 N. Y. S. 1037. Compare Sec. 138. Sec. 973. Instruction that plaintiff was entitled to recover if cause of sale error, where employment as agent is in issue. Where the question whether a real estate broker was em- ployed by the owner is in issue in an action for broker's com- missions, and the evidence thereon is conflicting, it is error to instruct that the broker is entitled to recover, if he was the procuring cause of sale, for the commissions as claimed, as the instruction takes the question of employment from the jury. Benedict v. Pell, 74 N. Y. S. 1085, 70 App. Div. 40. Sec. 974. Instruction that if contract sued on was different, plaintiff barred recovery error, is a question of law. In an action by a broker to recover commissions for finding a purchaser for land, an instruction that if the contract sued on dinered from the contract made, plaintiff could not re- cover, was erroneous, as leaving a question of law to the jury. Nichols v. WUtacre, 112 Mo. App. 692, 87 S. W. 594. Sec. 975. Instruction on defendant's right to terminate agency, "broker entitled to fruits of seed sown," error. In an action by a broker to recover commissions for a sale of land, it appeared that some months after the authority to sell had been revoked for failure of the broker to procure a purchaser, the owners sold the land to one with whom the bro- ker had attempted to engotiate a sale. Held, error to submit the cause to the jury to determine whether the plaintiff was the efficient cause in procuring the sale, and, on defendant's request, to charge that defendant had the right to terminate his employment at any time, if he did not within a reasonable PLEADINGS, PRACTICE, ETC. 783 time produce a purchaser, to reply: "I have already charged that, but that does not prevent him from being entitled to the fruits of the seed he had already sown." Donovan v. Weed, 182 N. Y. 43, 74 N. E. 563. Sec. 975a. Erroneous instruction containing expression of opinion by the court on the weight of the evidence. In an action by a broker for commissions, the issue was whether plaintiff had sent the purchaser to defendant, and there was evidence for defendant that plaintiff had told de- fendant that he did not know the purchaser. The court in- structed the jury that, if they found any testimony to the contrary of plaintiff's assertion that he sent the purchaser to defendant, they were at liberty to find it, but if they could not, then they were bound to take the testimony as it stood, and that they were to examine the evidence and find wherein or whereby there was any testimony to the effect that the pur- chaser did not go to defendant's house under the direction of plaintiff, and, if they found any such testimony, to consider it, but if they found no such testimony that their duty was plain. Held, that the charge was erroneous as an expression of opinion by the court, that there was no testimony in the record contra- dictory to plaintiff's assertion that he sent the purchaser to defendant. Barendsen v. Wilder (Mich. Sup. '09), 122 N. W. 355, 16 D. L. N. 529. Sec. 976. Instruction proper that broker could not recover unless principal knew he was employed by seller. If, in an action against a buyer of land for a broker's com- missions, the plaintiff's evidence leaves it doubtful whether, while acting for defendant, he also was employed by A., the owner of the land, to sell it, or simply had an option on the property at the price named, the defendant is entitled to have the jury instructed that, "if the plaintiff acted as agent for A., without disclosing the fact that he was such agent to the defendant, he can not recover a commission from the defend- ant." Carpenter v. Fisher, 175 Mass. 9 55 N. E. 479. See also Sec. 314. 784 AMERICAN LAW HEAL ESTATE AGENCY. Sec. 977. Instruction proper that brokers could not recover unless defendant knew they would get pay from the other party. On the issue, whether real estate brokers suing to recover commissions for effecting an exchange of property, who had stipulated for commissions from both parties, were agents for both parties so as to forfeit their right to compensation, or mere middlemen, the court charged that no recovery could be had if the contract was one of agency, instead of that of mid- dlemen; that the brokers claimed that all they agreed to do was to find a man willing to make the trade; and that de- fendant claimed that they agreed to take the property and do the best they could with it; and that, if defendant's contention were true, the brokers could not recover commissions, unless defendant knew, before employing them, that they had stipu- lated for commissions from the other party. Held, that the instruction was sufficient. Friar v. Smith, 120 Mich. 411, 79 N. W. 633, 46 L. B. A. 229. See also Sec. 314. Sec. 978. Instruction that if commission was to be paid, de- fendant would not have sold and plaintiff barred recovery, properly refused. In an action by a real estate broker for commissions, in which there was evidence that the principal had sold the prop- erty to a purchaser procured by the broker, an instruction that the defendant would not have sold the property if he had known that he had to pay plaintiff a commission, plaintiff could not recover, was properly refused. Enochs v. Paxton, 87 Miss. 660, 44 S. 14. Sec. 979. Instruction that buyer by repeating offer was en- abling plaintiff to recover, error as suggesting conspiracy. In an action by a real estate broker for a commission for procuring a purchaser for a farm, who at first stated to the owner that he would not buy it, but who, on the same day, offered to take it on the terms agreed on, an instruction that he would have no right to return and offer to take the farm for the mere purpose of collecting a commission from defend- ant, was erroneous, as suggesting a conspiracy between the PLEADINGS, PRACTICE, ETC. 785 broker and the purchaser. Bailee v. McMurray, 113 Mo. App. 253, 88 S. W. 157. Sec. 980. Instruction to find for plaintiff if believed he was trying to sell land, not warranted by pleadings. Where a real estate broker, suing for commissions, alleges that through his efforts the land was sold, an instruction that if the jury believe plaintiff was trying to sell the land, etc., they should find for him, is not warranted by the pleadings. Yarbrough v. Cr eager (Tex. Civ. App. '03), 77 S. W. 645. Sec. 981. Instruction proper defining distinction between selling to broker's customer and to a third party. In an action for commissions on a sale of defendant's land, an instruction that the jury should find for the defendant if the plaintiff had been unable to procure a purchaser, and had abandoned his efforts to procure one, was not reversible error for making defendant's rights dependent upon two states of facts, either of which was sufficient in itself, in view of the fact that plaintiff's claim was "that he found a purchaser to whom defendant sold, pending plaintiff's negotiations for a sale, and that the court also instructed on the distinction be- tween selling to the plaintiff's customer and to a third party. Van Tobel v. Stetson, 32 Wash. 683, 73 P. 788. Sec. 982. Instruction that sale effected through broker's efforts is meritorious, improper. In an action by real estate agents for commissions, a charge that where a sale is effected through the efforts of a real estate agent, "his services are regarded in law as highly meri- torious and beneficial," is improper. Bowie v. Gage, 127 Wis. 245, 106 N. W. 1074, 115 Am. St. R. 1010. Sec. 983. Instruction that broker must show retainer or ac- ceptance by principal, not usually prejudicial. An instruction that a broker must show a retainer or that the principal accepted his agency and ratified his acts, is not prejudicial to the principal, although there is no evidence of ratification, where the jury was instructed as to what is nee- 786 AMERICAN LAW REAL ESTATE AGENCY. essary to constitute a ratification. Duncan v. Borden, 13 Colo. App. 481, 59 P. 60. Sec. 984. Instruction assuming broker acted for defendant erroneous, although that separately submitted. In an action by a real estate broker for commissions, the de- fendant answered denying the broker's employment, and tes- tified that he merely inquired of the broker if the latter had a customer who would exchange land for the defendant's stock; that the broker responded that he had; that defendant then said he was putting in his own time trading, and wanted it understood that he would not pay a commission; the court in- structed, if it appeared that at defendant's instance the bro- ker procured a customer, etc., and that it appeared that when defendant listed his property with the broker, the latter in bringing the parties together, etc., was acting for both of them. Held, that the instruction was erroneous in assuming that the broker was acting for the defendant, though the issue as to defendant's promise to pay a 'commission was separately sub- mitted. Casady v. Carralier, 119 Iowa, 500, 93 N. W. 386. Sec. 984a. Instruction to find for plaintiff held not mislead- ing when condition favoring defendant also given. Where, in an action for a broker's commissions on a sale of real estate, the court charged that the jury should find for de- fendant, if a specified condition had been imposed for the sale, and the sale was made without reference thereto, an instruction that if the broker by himself, or through his sub-agent, pro- duced a purchaser ready, able and willing to buy on the terms agreed on between the broker and the owner, the owner was liable, was not misleading, for, if the specified condition had been imposed, the charge required proof that the sale had been effected accordingly. Hansen v. Williams (Tex. Civ. App. '08), 113 S. W. 312. Sec. 985. Instruction that unless they find contract entered into must find for defendant, insufficient. In an action by a real estate agent for commissions, in which defendant claimed that a contract to pay commissions was not PLEADINGS, PRACTICE, ETC. 787 made with plaintiff personally, but with him as agent of his father, an instruction that the first question to determine was whether the contract was between plaintiff and defendant, or between plaintiff's father and defendant, and that unless the jury find that the contract was entered into between plaintiff and defendant they should find for the latter, was not a suffi- cient statement of the principle that defendant was not liable if the contract was made with the principal as agent. Snyder v. Fidler, 125 Iowa, 378, 101 N. W. 130. Sec. 986. Instruction that broker could recover if, when nego- tiations were broken off, buyer still intended to buy erroneous. In an action for commissions on a sale of land, an instruction which assumes a ratification of plaintiff's authority to sell, but directs that plaintiff might recover if the subsequent sale of the land by the owner to the same person with whom plain- tiff has previously negotiated, if at the time negotiations with him were broken off, the purchaser had not given up the idea of ultimately making the purchase, is erroneous. GUlet v. Corum, 5 Kan. 608. See also Sec. 447. Sec. 986a. Error to refuse to instruct on joint contract that verdict must be for defendant if jury find contract was with one. In a suit against two defendants for a broker's commission for procuring a purchaser for lands, under a joint employment by de- fendants, it was error to refuse to instruct that the jury must find for defendants, if one of them alone employed plaintiff. Handley v. Shaffer, 59 S. 286, 177 Ala. 636. Sec. 986b. Charge of cancellation of broker's contract im- properly refused. In an action for a broker's commissions, an instruction that if defendant told plaintiff, or his partner, to take the land off the market, that it was not for sale, to find for defendant, was improperly refused, though the court instructed in a gen- eral way that plaintiff could not recover if defendant had with- 788 AMERICAN LAW REAL ESTATE AGENCY. drawn authority to sell. Taylor v. Read (Tex. Civ. App. '08), 113 S. W. 191. Sec. 987. Instruction that delegated authority can not be re-delegated, misleading and erroneous. "Where a land owner authorized a person to write to an agent authorizing him to sell real estate, which the agent does pur- suant to the letter so written, after which the land owner dis- putes his authority to sell, an instruction that a delegated author- ity to an agent to sell real estate can not be re-delegated, is misleading and erroneous. Gross v. Schafer, 29 Kan. 442. See Sec. 5 for acts which can not be sub-delegated. Sec. 987a. Prejudicial error in charge to jury recalled for further instructions. An instruction, in an action for a broker's commissions, after the jury had been recalled, and had announced that they were not likely to agree upon a verdict, that such trials were costly to the county, that if results are not reached people lose faith in the ability of the courts to deliver justice; that the single question in the case, which could be solved readily, was whether plaintiff, by his sub-agent, procured a customer, and whether the parties dealt, that if so, plaintiff was entitled to his com- missions; and that the case was the simplest ever presented to ,a jury, was prejudicial error, as in fact directing a ver- dict for plaintiff, though the court had previously instructed that before the plaintiff could recover he must prove by a fair preponderance of the evidence that defendant contracted with him, or that she authorized her husband to do so, etc. Ebert v. WUcox, 155 Mich. 69, 118 N. W. 735, 15 D. L. N. 967. Sec. 988. It was error to refuse instruction that plaintiff's employment to procure a tenant was revoked by inter- view. Where, in an action for a broker's commissions in negotiat- ing a hotel lease, the court charged that the jury could find for the plaintiff, either if plaintiff's agency had been revoked or if the revocation was made in bad faith, the refusal of cer- tain instructions, "that under the evidence plaintiff's em- ployment to procure a tenant was revoked by what took place PLEADINGS, PRACTICE, ETC. 789 in a certain interview between plaintiff and defendant," could not be sustained on the theory that a revocation, if in fraud of plaintiff's rights, would not amount to a revocation. Cadi- gan v. Crdbtree, 192 Mass. 230, 78 N. E. 412. Compare Sec. 22. Sec. 989. Instruction to find for defendant on one state of facts, for plaintiff on another, not inconsistent. An instruction, in an action by a real estate agent for com- missions, to find for defendant if he employed plaintiff to sell his land and agreed to pay him a commission, and subse- quently and before the purchaser had been produced to defend- ant, or a written contract secured by plaintiff for a sale, de- fendant notified him that he would, three days later, take the land from his list, and that he never made any further effort to sell; and an instruction to find for plaintiff, if defendant agreed to pay him a commission for selling his land, and plain- tiff, as his agent, made a verbal contract with E. to sell him the land on the stipulated terms, and a month later E. made a written contract with plaintiff to buy the land on such terms, and E. was financially able to execute such contract, though in the time between the making of the verbal and written contracts defendant notified plaintiff he had termin- ated his agency, are not inconsistent, and both are correct. Kesterson v. Ckeuvront (Mo. App. '02), 70 S. W. 1091; Wein- man v. Spencer (Tex. C. A. '09), 124 S. W. 209; Benton v. Brown (Iowa Sup. '10), 124 N. W. 815. Sec. 990. Instruction to find for defendant if plaintiff aban- doned employment, did not harm defendant. In an action by a real estate agent for commissions, in which it was claimed that plaintiff had abandoned his agency, an instruction that if the jury believed ,he had abandoned the agency he could not recover, though faulty for failure to state the specific facts alleged to constitute the abandonment, could not have harmed defendant. McCormack v. Henderson, 100 Mo. App. 647, 75 S. W. 171. Sec. 990a. Charge held not to require a verdict for defendant. The evidence being conflicting as to whether the property was withdrawn from the market before or after the owner's 790 AMERICAN LAW REAL ESTATE AGENCY. employment of the broker, a charge, in the broker's action for compensation, that if, before the broker submitted the prop- erty for sale to a prospective purchaser, the owner had re- fused the offer of the prospective purchaser, defendant should recover, did not require a verdict for defendant. Brady v. Maddox (Tex. C. A. '09), 124 S. W. 739. Sec. 990b. Charge interpreted not to require the jury to ignore the special charges. A general charge that the jury should find a verdict upon a preponderance of the evidence, under the foregoing charge, followed by defendant's special charges, was not erroneous as requiring the jury to find a verdict under the general charge alone, and to ignore the special charges, since the jury could not have understood that after the special charges were given they were to be ignored. Brady v. Maddox (Tex. Civ. App. '09), 124 S. W. 739. Sec. 991. Instruction that broker only required to find pur- chaser if land had average quantity of timber, erroneous. "Where in an action for a broker's services in the selling of timber land, a letter written by defendant was silent as to an "average quantity" of timber, certain instructions charg- ing that defendant's proposition contained in such letter only required plaintiff to secure a purchaser of all land if it con- tained an average quantity of timber, were erroneous. Veatch v. Norman, 109 Mo. App. 387, 84 S. W. 350. Sec. 992. Instruction that if defendant made promise verdict should be for plaintiff, correct. Where plaintiff seeks to recover $1,000 for making a sale, on the ground that there was a special contract therefor, there is no error in charging that if defendant made the promise, the verdict should be for plaintiff, there being no request for an instruction on the want of consideration, and defendant's testimony that, at the time of the sale, and before as well as afterwards plaintiff was in his employ, and whatever services he rendered, including any he may have rendered in connec- tion with the sale, were within the scope of his said employ- PLEADINGS, PRACTICE, ETC. 791 ment, and any such special contract was without consideration, being too vague and uncertain to warrant a finding that the special services were within the scope of any contract between them other than that sued on. Keyser v. Reilly, 191 Pa. St. 271, 43 A. 317, 44 Weekly N. C. 240. Sec. 993. Instruction that agent through whose effort buyer found entitled to commission, inapplicable to proof. In an action by a broker for commissions, where there was no evidence that defendant had employed others to make a sale of the property, an instruction that the agent, through whose efforts a purchaser was found, is alone entitled to the commissions, though legally correct, was erroneous as inappli- cable to the proof. Leech v. demons, 14 Colo. App. 45, 59 P. 230. Sec. 994. Instruction authorizing finding against plaintiff, though procuring cause of sale, erroneous. In an action for the commissions of a real estate broker, in- structions that if plaintiff and another broker both had the premises for sale, and the other first directed the purchaser's attention to the property, and first visited the property with him, he was entitled to the commissions, though plaintiff af- terwards took the purchaser to the property and introduced him to the owner, were erroneous, because authorizing a find- ing against plaintiff, though he was the procuring cause of sale, and as such entitled to compensation. Bowser v. Mick, 29 Ind. App. 49, 62 N. E. 513. Sec. 994a. Instruction erroneous which disregards who was the procuring cause of the sale. "Where, in an action by a real estate broker for commissions, the issues involved the question whether the efforts of the bro- ker were the procuring cause of the sale, an instruction au- thorizing a recovery on a finding that the broker was employed to procure a purchaser and introduced a customer to the owner to whom a sale was subsequently made, without requiring a finding that the broker was the procuring cause of the sale was erroneous. Rnssell v. Poor (Mo. App. '08), 115 S. W. 1. 792 AMERICAN LAW REAL ESTATE AGENCY. Sec. 995. Instruction held inconsistent with another that con- tract had been ratified. In an action by a real estate broker for commissions, a charge that if the purchasers were accepted by defendant as satis- factory, the verdict should be for plaintiff, but, if not, to au- thorize a recovery it must be shown that the purchasers were ready, willing and able to perform their part of the contract, within a reasonable time from that named therein, was incon- sistent with another charge that the contract had been ratified and confirmed by defendant and was binding on him. Flynn v. Jordal, 124 Iowa, 457, 100 N. W. 326. Sec. 996. Instruction that if plaintiff materially altered con- tract, without defendant's knowledge, it would not bind him, not objectionable. In an action for a broker's commissions, an instruction that the sale contract contained the terms of the sale and plain- tiff's authority, and that he had no right to sell the land on any other terms, and if he changed the contract, without de- fendant's knowledge or consent, by striking out the rate of interest to be paid, it was a material alteration, and would not bind defendant, nor entitle plaintiff to recover his commissions, was not objectionable, in that it omitted to charge that, if plaintiff made the change in good faith, believing that it was in accordance with the understanding of the parties, there was no fraud. Robertson v. Vasey, 125 Iowa, 526, 101 N. W. 271. See also Sec. 969. Compare Sec. 485. Sec. 997. Instruction that where owner knew, he is not bound to decide which was procuring cause, properly refused. An instruction that an employer of two or more real estate brokers may make a sale to the buyer produced by either of them, and is not bound to decide which of them is the primary cause of the purchase, is properly refused, where the evidence shows that the employer of two brokers, sued by one of them, had full notice that he was the procuring cause of the sale. Eggleston v. Austin, 27 Kan. 245. PLEADINGS, PRACTICE, ETC. 793 Sec. 998. Instruction that plaintiff not entitled to recover unless he sold at price fixed, correct. In an action to recover commissions for selling land, in which defendants pleaded in their answer that the contract was that plaintiff was to sell the land and have a commission of one and one-half per cent, if he sold it at $90 per acre, and that they had taken the land out of the hands of plaintiff for sale and sold it themselves, they can not complain of an in- struction to the jury to find for them, if the jury believed that the only contract was that if plaintiff would sell the land for defendant at the price of $90 per acre defendants would pay one and one-half per cent, commissions, and that plaintiff failed to sell the land, or find a buyer therefor at that price. Prewitt v. West, 22 Ky. L. E. 492, 55 S. W. 884. See also Sec. 307. Sec. 999. Instruction, if defendant not requested to furnish abstract of title, plaintiff not entitled to recover, properly refused. In an action by a broker for commissions for finding a pur- chaser for defendant's land, plaintiff claimed that defendant had been required to give an abstract of title, which he had not done, hence defeating the sale; defendant denied that he had been "requested;" but his evidence showed that the ab- strSfct "had been required," and the contract with the broker provided that "if required," an abstract should be furnished. Held, that defendant could not complain of the refusal of an instruction that, if defendant was not requested to furnish an abstract, plaintiff was not entitled to recover. Bruce v. Wolfe, 102 Mo. App. 384, 76 S. W. 723. Sec. 1000. Instruction erroneous in eliminating question of connection between the transactions. Where, in an action for a broker's services, plaintiff claimed that the defendant agreed to pay him $1,000,000 in case he purchased a railroad which plaintiff was endeavoring to sell, or became interested therein, and plaintiff claimed that there- after defendant did become interested by participating in a 794 AMERICAN LAW REAL ESTATE AGENCY. syndicate by which such railroaa was consolidated with another, an instruction that plaintiff's contention was that defendant agreed to pay $1,000,000 if he went in with any one else in the purchase of the property, and that when he participated in the syndicate, "he did go in with somebody else, and there- fore became indebted to him in the sum of $1,000,000," was erroneous, in eliminating the question whether there was any connection between the transaction with the defendant and the purchase of the road by the syndicate of which he afterwards became a member. Hingis v. Fitzgerald, 95 N. Y. S. 436, 108 App. Div. 24. Sec. 1001. Instruction erroneous, which confines to one inter- pretation, where terms of contract are in dispute. Where the contract between the broker and his principal is oral, and its terms are in dispute, it is error to instruct the jury, that if the plaintiff brought the purchaser to the notice of the seller he is entitled to commissions, and that that was the only question for them to determine, unless, under the only reasonable interpretation of which the language of the parties was susceptible, in the light of the circumstances, that was all he was required to do to earn the commissions. Henderson v. Sonneborn, 30 Pa. Sup. Ct. 182. Sec. lOOla. Erroneous qualification in charge to jury. In an action by a broker for commissions on a sale of land, it was error to qualify an instruction that plaintiff could not recover if he was acting for both parties, by the statement: "Unless his double employment was understood," without stat- ing, that it must appear the buyer knew, or had been informed by plaintiff of his relation to defendant; since the jury might have inferred that even if defendant knew plaintiff was the agent of the buyer, and unless plaintiff fraudulently induced him to believe that he was serving only in his interest, the fail- ure to disclose to the buyer the employment by defendant would not bar recovery. Sullivan v. Tufts (Mass. Sup. '09), 89 N. E. 239. PLEADINGS, PRACTICE, ETC. 795 Sec. 1002. Instruction that contract was invalid, misleading and prejudicial. Plaintiff claimed that defendant had promised to pay a cer- tain sum on his procuring a contract for the sale of his land, and that he had done so; defendant contended that he had so promised, provided the sale, as agreed on, should be consummated. Held, that the question whether the contract of sale could be legally enforced was immaterial, under the issues, and an instruc- tion that it was invalid was misleading and prejudicial. Baird v. GlecUer, 11 S. D. 233, 76 N. W. 931. Sec. 1002a. Where broker's efforts induced sale where pre- vious efforts of owner failed, charge by owner that, to re- cover, broker must have procured purchaser properly, re- fused as misleading. In an action to recover real estate commissions for a sale al- leged to have been made by the owner as a result of the plain- tiff's efforts, following alleged promise by the owner to pay the plaintiff such commission, after the owner had failed to effect a sale to such purchaser with whom he had originally negotiated, without any introduction by the plaintiff, an instruction making it essential to a recovery that the purchaser should have been originally procured by the plaintiff; held, properly refused as misleading. O'Connor v. Kennedy, 200 111. App. 426. Instruction that plaintiff "is entitled to recover if he was in- strumental in bringing the buyer and seller together;" held cor- rect, and not open to the objection that the jury might have in- ferred that it meant a mere physical bringing together. Id. Sec. 1003. Erroneous instruction not cured by requiring a finding that a contract still existed. Where a broker's contract for services required a sale of nineteen quarter-sections of land within thirty days, at $9 per acre, the broker to receive one dollar per acre commission, an instruction, in an action for commissions on the contract, that if the jury found that plaintiff procured a purchaser for all the land within the time, who was able, ready and willing to purchase, then plaintiff was entitled to recover the amount 796 AMERICAN LAW EEAL ESTATE AGENCY. claimed, though only sixteen quarter-sections were sold to the procured purchaser, and by the owner himself, for a less sum than the price fixed in the contract, was not cured by a pro- viso requiring the jury to find that at the time the sale was finally consummated there still existed a contract between plain- tiff and defendant to pay one dollar per acre commissions. Ball v. Dolan, 18 S. D. 558, 101 N. W. 719. Sec. 1004. Where agent testified owner agreed to all sales, it was error to instruct for defendant as to any. Where an agent testified that the owner agreed to the prices at which he sold the different tracts, it would be error to in- struct the jury to find for the defendant as to any of the tracts. McLane v. Goode (Tex. Civ. App. '02), 68 S. W. 707. Sec. 1005. Instruction proper, that if plaintiff aided and as- sisted in sale of railway, defendant was liable. In an action to recover for services in promoting the sale of a street railway, it was proper to instruct the jury that defend- ant was liable if they found that plaintiff aided and assisted in the negotiations with the prospective vendee, where this was the gist of the undertaking sued on. Alexander v. Wakefield (Tex. Civ. App. '02), 69 S. W. 77. Sec. 1005a. Instruction defining word "solicit" upheld. An instruction in an action for commissions as sales agent, that the word "solicit," as used in the contract, meant to seek for, and that it was incumbent upon plaintiff to show that he endeavored to obtain purchasers for defendant, per- sons who, in fact, did purchase; that it was not necessary for plaintiff to show that the purchasers made the trip solely upon his solicitation, but that if the sale was made to them on ac- count of former dealings of defendant with them, through plaintiff's agency at the place where plaintiff resided, and that plaintiff aided and assisted in bringing them together, and encouraged and endeavored to induce the purchasers to make the trip, this would be a solicitation by plaintiff, entitling him to commissions on the sale, imposed upon plaintiff every bur- PLEADINGS, PRACTICE, ETC. 797 den resting upon him to entitle him to recover. Curlee v. Reeves (Neb. Sup. '09), 123 N. W. 420. Sec. 1006. Instruction for plaintiff erroneous, where the evi- dence is conflicting. In an action for services rendered in purchasing property where there was a conflict in the evidence as to whether or not plaintiff had performed the services which he was em- ployed to perform, a charge authorizing a recovery for plain- tiff, without requiring the jury to find that he had performed the stipulated services, was erroneous. St. Louis, S. W. P. Co. of Texas v. Irvine (Tex. Civ. App. '05), 89 S. W. 428; Trees v. Milliken (Ind. App. '08), 85 N. E. 123. Sec. 1007. Instruction erroneous which leaves the jury to de- termine what constitutes a valuable consideration. Plaintiff, as broker, sold a ranch for defendant, a farm being taken in exchange for part of the price; defendant re- fused to pay any commissions on the value of the farm; after the sale of the farm plaintiff sued for commissions thereon, claiming that he had accepted the settlement as to commis- sions on the sale of the ranch, on an agreement for a commis- sion on the sale of the farm; defendant claimed that, while he had authorized plaintiff to assist in selling the farm, it iwas sold by defendant himself; the court instructed that if a contract for commissions on a sale of the farm was made for a "valuable consideration," and plaintiff complied with his contract, and the farm was sold "at a price and upon terms acceptable to defendant," plaintiff was entitled to recover, and refused to instruct that "if defendant failed to pay all the commissions for the sale and exchange of the ranch, and the parties agreed in lieu thereof, he was to have a commis- sion on the sale of the farm," etc.. "plaintiff was entitled to recover." Held, that there was error in the giving and re- fusing of the instructions, the jury having been left to deter- mine what would be a valuable consideration, and the words "at a price and on terms acceptable to defendant" being su- perfluous and probably misleading. Harrison v. Houston (Tex. Civ. App. '06), 91 S. W. 647. 798 AMERICAN LAW REAL ESTATE AGENCY. Sec. 1008. Instruction properly refused which ignored plain- tiff's theory of cause of sale. In an action by a real estate broker for his commissions in securing a purchaser, an instruction is properly refused which ignores plaintiff's theory that the efficient cause of the sale was the vendor's representative acting with him and accepting his services, with knowledge of his occupation, although such representative may have acted with other agents in some mat- ters respecting the sale. /. P. Watkins Land & Mtg. Co. v. Thetford (Tex. Civ. App. '06), 96 S. W. 72. Sec. 1009. Instruction properly refused that broker to earn commissions must notify his principal. Where, in an action for a division of a broker's commissions, the contract between the parties provided that if plaintiff would "assist" in obtaining a purchaser he should be entitled to one- half the commissions earned, an instruction that unless the person claiming the commissions find such purchaser and com- municate the fact to the other party at the time, he can not recover, was properly refused. McCleary v. Willis, 35 Wash. 676, 77 P. 1073. See also Sec. 799. Sec. 1009a. Failure to instruct as to notice held not error. In an action for a commission on a sale of land, an offer to show that there was a supplemental contract, and that by an oversight, mistake or fraud, a stipulation that plaintiff's right to sell the land should expire at a time which had passed, was omitted from the writing, contains no offer to prove notice of revocation of plaintiff's right, and a failure to instruct as to what constitutes such notice is not error. Hoffner v. Cham- bers, 121 Pa. St. 84, 15 A. 492. Sec. 1010. Instruction erroneous that commission was not to be paid unless sale consummated. In an action by a real estate broker for commissions, it ap- peared that the owner authorized plaintiff to sell certain real estate for $41,000, agreeing to pay a commission; plaintiff claimed the making of a verbal modification to the effect that he should receive the commission, without regard to price, which modification is denied; a contract was introduced in evidence PLEADINGS, PRACTICE, ETC. 799 between the owner and another for a sale for $40,000, but it was claimed that certain interlineations in the contract were made after it had been signed by the owner, and that he never agreed to it in its altered condition; there was also evidence that plaintiff procured a purchaser for $42,000, but the owner refused to perform. Held, that it was error to instruct that the commission was not to be paid unless the sale was consum- mated, and that the risk of failure was wholly on the broker. Bruce v. Hurlbut, 81 N. Y. S. 54, 81 App. Div. 311. See also Sec. 969. Sec. 1011. Instruction that if broker changed contract believ- ing defendant would see before signing, not prejudicial to plaintiff. In an action for broker's commissions, an instruction that if the broker caused a change to be made in the contract, be- lieving that defendant would see the change when the contract was delivered to him, then the defense of fraud on the part of the broker in so changing the contract was not sufficiently established to defeat plaintiff's claim for commissions, was not prejudicial to plaintiff. Robertson v. Vasey, 125 Iowa, 526, 101 N. W. 271. Sec. 1012. Instruction that to entitle him to commissions- the broker must have acted in good faith, is proper. Where the evidence tended to show an interest on the part of a real estate broker in the contract of purchase, an instruc- tion that to entitle him to commissions he must have acted in good faith and in the interest of his employer. Held, not erroneous. Buck v. Hogeboom, 125 Neb. 526, 90 N. W. 635. Sec. 1013. Instruction, in answer to question by foreman, that jury not bound by any rule in fixing damages, error. In 'an action by a real estate broker for commissions, it was error to tell the jury, in answer to a question by their fore- man, that they were not bound by any rule in fixing damages, as the court should have charged them that the rule was the customary commissions in such cases, or, if the evidence was insufficient on that question, what would be a fair compensa- 800 AMERICAN LAW EEAL ESTATE AGENCY. tion. Hartman v. Warner, 75 Conn. 197, 52 A. 719. See Sec. 300. Sec. 1014. Instruction proper, that if plaintiff entitled to commissions, jury should determine their value. In an action for a broker's services, it was proved that the value of plaintiff's services for furnishing a purchaser of the land was one dollar per acre, and that it was worth the same for "selling;" defendant's answer admitted plaintiff's services in "selling" the land, and the case was tried on the theory that the services in "selling" or "furnishing a purchaser" were the same. Held, that the court did not err in charging that, if the jury found the plaintiff was entitled to a com- mission for services in "selling" the land, it should determine the value thereof. Wallick v. Lynch (Iowa Sup. '06), 106 N. W. 617. Sec. 1015. Instruction rightly refused, that if entitled to any- thing broker confined to a quantum meruit. In an action for services as a broker in procuring defend- ant a contract to purchase land, a request for a ruling that the plaintiff could not recover more than a quantum meruit for his services as a broker, if entitled to recover anything, was held rightly refused, as it assumed that plaintiff had been acting as a broker, while the question whether he had been so acting or not was in issue, and as it disregarded the plaintiff's claim that there was a special agreement 'between the defend- ant and himself, of which there was evidence for the jury. Graves v. Dill, 159 Mass. 74, 34 N. E. 336. Sec. 1015a. Instruction held properly refused. An instruction that a real estate agent is not entitled to recover for his services if he failed to accomplish the sale, and the vendee was induced to reconsider his resolution and purchase by another agent, notwithstanding the vendee might never have looked at the property or thought of buying it but for plaintiff, "as his agency was not the immediate and effi- cient cause of the sale," was properly refused, where there PLEADINGS, PRACTICE, ETC. 801 was no evidence that another agent was instrumental in ef- fecting the sale, and also, because the jury were likely to mis- understand the last clause, and regard it as an independent part of the instruction. Solomon v. Cress, 29 P. 439, 22 Or. 177. Sec. 1016. Instruction authorizing recovery upon either of two hypotheses, not in conflict. In an action for a broker's commissions against stockhold- ers of a brewing company for a sale of its property, where the evidence showed that the debts of the company were about $30,000, that the purchasers assumed this indebtedness, reliev- ing defendants from any liability thereon, and that by the written contract of sale the purchasers relieved defendants of all personal liability on the obligations of the company, not to exceed $30,000, there was no conflict between instructions authorizing a recovery of ten per cent, of the debts of the com- pany from which the defendants were to be relieved as sure- ties, and one authorizing a recovery of ten per cent, of the debts of every kind of the company. Morgan v. Keller, 194 Mo. 663, 92 S. W. 75. Sec. 1017. Instruction proper, where some sales are admitted, to award commissions, though no contract be proved. "Where plaintiff alleged a contract for commissions and sales made thereunder, and defendant denied the contract, but ad- mitted some of the sales and that he was indebted to plaintiff in a reasonable sum for commissions thereon, an instruction that, if the jury did not find that there was a contract, then they should award plaintiff reasonable commissions, was proper, such issue being raised by defendant. Wheeler v. Buck, 23 Wash. 679, 63 P. 566. Sec. 1018. Instruction that if sales were made within con- tract to pay commissions to plaintiff, is sufficiently definite. In an action for a broker's commissions, the court's charge, that if the purchasers went to South Dakota, by reason of 800 AMERICAN LAW EEAL ESTATE AGENCY. plaintiff's introduction to defendant, and examined the lands defendant had for sale, and if defendant participated in the business resulting in sales, then the sales were made by defend- ant within his contract to pay to plaintiff, was a sufficiently definite instruction on the issue, of the manner in which de- fendant must have sold the land in order to render himself liable. Murphy v. Hiltbridle, 132 Iowa, 114, 109 N. W. 471. Sec. 1019. Instruction erroneous, as question of broker's au- thority was for the jury. Where a fruit farm was listed for sale with a real estate agent, who, in turn, listed it with another agent, and there was evidence tending to show authority of the latter to make representations relating to the farm, the court should not have instructed that the owner was bound by representations made by him, but should have submitted the question of his authority to the jury. Mailer v. Jeffries, 145 Mich. 598, 108 N. W. 994, 13 D. L. N. 600. Sec. 1019a. Instruction erroneous that invades the province of the jury. An instruction in an action for commissions for selling land selecting language that the parties used, that might be evidence of the annulment of a contract, and informing the jury of its probative effect, would have been on the weight of the evidence, and an invasion of the province of the jury. Mumme v. Gates (Tex. Civ. App. '09), 120 S. W. 1046. PLEADINGS, PRACTICE, ETC. 803 Sec. 1020. Instruction where contract was for sale to certain party, which failed, plaintiff could not recover. There being evidence that defendant only contracted with plaintiff with reference to a sale to a certain party, which sale fell through, defendant was entitled to a charge that plaintiff could not recover if the contract was so limited. Wefel v. Stillman, 151 Ala. 249, 44 S. 203. Sec. 1021 Instruction erroneous, which relied on usage, in not requiring the jury to find the existence thereof. In an action by a real estate broker for commissions for sell- ing a leasehold, plaintiff's prayer for an instruction which relied on usage and custom to fix the amount to which he was entitled, was erroneous in not requiring the jury to find the existence of a uniform and notorious custom regulating the compensation of agents making sales of leaseholds. Groscup v. Downey, 105 Md. 273, 65 A. 930. Sec. 1022. Instruction erroneous, that because husband had charge of real estate, had authority to employ a broker. In an action for commissions for selling real estate, an in- struction that if defendant's husband "was agent in charge of said property, and for the sale of the same, and defendant's said agent employed plaintiff" to procure a purchaser, and the property was sold by defendant to a purchaser procured by plaintiff, he was entitled to recover, was erroneous, in that it in effect instructed the jury, as a matter of law, that if defend- ant's husband was the agent in charge of said property and for the sale of the same, he had authority to employ another to procure a purchaser. Id. See also Sec. 39. Sec. 1023. Instruction properly refused, to find for plaintiff, where liability of defendant was for the jury. An instruction requested by plaintiffs, in an action by real estate agents for commissions, that, though the jury find it was agreed between plaintiffs and defendants that commissions should not be paid unless defendants actually traded a cer- tain building for a ranch controlled by plaintiffs and passed title, yet if they find that it was the act of defendants which 804 AMERICAN LAW HEAL ESTATE AGENCY. prevented the exchange being made, they should find for plain- tiffs, they having procured a person ready and able to make such trade on terms satisfactory to defendants, is properly re- fused as misleading, it being conceded that, as between defend- ants and the owners of the ranch, it was the act of defendants which prevented the exchange being made, and there being evi- dence that the act was compelled against the wishes of defend- ants by circumstances which they could not avoid, and which, under the contract of employment was sufficient to absolve them from liability for the commissions. Eieger v. Merrill, 125 Mo. App. 541, 102 S. W. 1072. See also Sec. 125. Seo. 1024. Instruction to find for one of competing brokers is correct, even though he did not close the trade. An instruction, at defendant's request, in an action to deter- mine which of two real estate brokers was entitled to the com- missions for selling land, that where real estate was listed for sale with several real estate agents acting independently, the one who succeeded in bringing about a contract between the seller and the purchaser was the one who earned the commis- sions, regardless of the fact that some other real estate men may have introduced the purchaser to the seller, if error, as excluding the theory that the broker who is the procuring cause of the sale is entitled to the commission, did not constitute a reversible error, where instructions were given in plaintiff's behalf, that if the purchaser of the land had it first brought to his notice by plaintiffs, who, at his solicitation, disclosed the owner's name, and the information received from plaintiffs was the primary cause of the purchaser afterward buying the land, then plain- tiffs were entitled to recover, even though defendants showed the purchaser the land and assisted in closing the trade, and that if the purchaser promised plaintiffs to take it, if it suited, before defendants brought the land to the purchaser's notice, and the owner was notified by the plaintiffs of that fact, and the defendants afterwards took the purchaser to show him the land, then plaintiffs were entitled to recover, even though they did not close the trade for the land. Painter v. Ktlgore (Tex. Civ. App. '07), 101 S. W. 809; Smith v. Sharp (Ala. Sup. '09), 50 S. 381. See also Sec. 446. PLEADINGS, PRACTICE, ETC. 805 Sec. 1025. Instruction erroneous, as to reservation in deed of mineral deposits. Error in the instruction on a contract to procure a purchaser for defendant's land, wherein plaintiff contended that lie found purchasers and that the sale failed solely because of defendant's defective title, in that the instruction was open to a construction that, from the fact that the attorney for the purchasers saw the deed, it was conclusively established that the purchasers knew the reservation therein of marl mineral and gas deposits, was not cured by undisputed testimony that plaintiff stated to the purchasers, or one of them, that defendant would reserve the mineral deposits, or by the further instruction that plaintiff must prove that the purchasers knew about and consented to the reservation. Weaver v. Richards, 150 Mich. 20, 113 N. "W. 867, 14 D. L. N. 617, 120 N. W. 818, 16 D. L. N. 117. Sec. 1026. Instruction assuming absence of special contract and existence of custom, erroneous. In an action of assumpsit for brokerage commissions, an instruction assuming the absence of a special contract and the existence of an established custom as to commissions, is erroneous, the fact of the existence of such custom being one which should be submitted to the jury under proper instructions. Cobb v. Dunlevie, 63 W. Va. 398, 60 S. E. 384. Sec. 1027. Instruction that plaintiff was employed to super- vise erroneous, as ignoring the defense. Where plaintiff, an architect, about to supervise the erection of a building, advised defendant to have his adjoining building underpinned before excavations for the new building began, and thereupon defendant agreed with a contractor that the latter, for a specific sum should, under plaintiff's supervision, underpin defendant's wall, and defendant and a witness testified that the specified sum w T as to cover the entire cost of the work and that plaintiff agreed to charge nothing for his supervision, an instruction that by the contract plaintiff was employed by de- fendant to supervise the contractor's work, was erroneous, as ignoring the defense, as plaintiff may have been working for 806 AMERICAN LAW HEAL ESTATE AGENCY. compensation or giving his services gratuitously because of his interest in the adjoining property. Kirchner v. Concord Inv. Co,, 127 Mo. App. 262, 104 S. W. 1127. Sec. 1028. Instruction ignoring whether plaintiff's efforts had ceased or his agency revoked, error. Where, in an action for a broker's commissions, there was evidence that plaintiff's agency had been revoked before defend- ant began negotiations with the purchaser, while plaintiff's evidence indicated that such revocation was made with knowl- edge that it was through plaintiff's efforts the purchase was made, an instruction ignoring the question whether plaintiff's alleged efforts to sell the land had not been abandoned or his agency revoked before defendant and the purchaser met, was erroneous. Christian v. McDonnell, 127 Mo. App. 630, 106 S. W. 1104. Sec. 1028a. Not error for the court to charge that if sale made to broker's customer after he abandoned negotiations he was not entitled to commissions. In an action by a broker for commissions, the court did not err, as against the owner, in modifying an instruction requested by him, that the broker could not recover if he did not agree on the terms of sale with the one who purchased from the owner, though the broker procured the sale, by adding that he could not recover if the sale was made after he abandoned the negotia- tions or the person with whom he was negotiating declined to PLEADINGS, PRACTICE, ETC. 807 purchase. Stiewel v. Lolly, 89 Ark. 195, 115 S. W. 1134. See also Sec. 558. Sec. 1028b. Error not to allow owner to offer proof contra- dicting that offered by broker. In an action by a broker for commission for procuring pur- chaser; held, that the petition, though alleging that defendants, vendors, through the plaintiff, executed the contract of sale, must be deemed to have asserted that the contract of sale was executed pursuant to the enlistment contract ; hence, where evidence showed that terms of sale were contrary to the enlistment contract, and the broker introduced oral statements authorizing a sale on dif- ferent terms, it was error to refuse to allow the vendor to offer evidence in contradiction thereof, on the theory that, since he did not deny knowing the fact of broker's authority to execute a con- tract he should not, under Rev. Stat. 1911, art. 1906, sec. 3710, on trial offer proof in denial. Peeples v. Griffith, 214 S. W. 561, Tex. Civ. App. . Where defendant claimed that, when informed of plaintiffs offer, he told plaintiff that the property had been sold through other brokers, and that contract would be secured on the follow- ing day,, it was error to exclude in evidence a contract of sale, apparently executed on the following day, pursuant to alleged prior acceptance of offer. Duff & Conger v. Mdkley, 175 N. Y. Sup. 777. Sec. 1029. Instruction to find for architect, if claim believed, erroneous for not submitting defendant's claim. Where, in an action by an architect, he alleged that the owner was to pay for superintending five per cent, of the lowest bid, which was $6,150, and the owner alleged that he was only to pay, provided a contractor was procured to erect the building for $4,000, and there was evidence that the lowest bid was a little over $5,000, an instruction authorizing a verdict for the amount sued for, if the jury believed the architect's claim, was erroneous, as withdrawing from the jury the question of the amount of the lowest bid. Loftus v. Green (Tex. Civ. App. '07), 104 S. W. 396. 808 AMERICAN LAW REAL ESTATE AGENCY. Sec. 1030. Instruction that though terms unauthorized, find defendant ratified contract, correct. In an action to recover a commission for finding a purchaser for land, an instruction that if the terms of the contract made by the brokers with the proposed purchaser were unauthorized by defendant, before recovery could be had against him, the jury must find that he ratified the contract with full knowledge of the facts and its terms, was not objectionable as being on the weight of the evidence. Sterling v. DeLaune (Tex. Civ. App. '07), 105 S. W. 1169. Sec. 1031. Instruction properly refused that if owner believed relations with broker ended, latter could not recover. Where a land owner employed a broker to sell certain land and thereafter, while the broker was negotiating with a prospec- tive purchaser, the landlord asked him to make no further efforts to sell the land since the land owner's wife would not join him in executing the deed, to which the broker replied, "All right," and directly afterward the land owner sold the land to a purchaser secured by the broker, the court, in an action by the broker for his commissions, properly refused an instruction that if the broker induced the land owner to believe that the relation between them was terminated and the land owner acted upon such belief in making the sale contract, the broker could not recover. Branch v. Moore, 84 Ark. 462, 105 S. W. 1178. Sec. 1032. Instruction fully submitted two contentions as to the right of plaintiff to commissions. Prayers in an action by a real estate broker to recover from other brokers for a commission received by them from the sale of a lot that if the court found that there was no agreement to make any division of the commissions then the verdict must be for plaintiff, whether or not plaintiff was a licensed real PLEADINGS, PRACTICE, ETC. 809 estate broker, and that if plaintiff introduced the purchaser to defendants or those for whom they acted, and gave defendants notice of the negotiations between plaintiff and the subsequent purchaser and a sale was made to such purchaser as the result of the introduction by plaintiff, the verdict must be for plaintiff, and that if a sale was made through the bringing of the parties together by plaintiff then plaintiff was entitled to recover, even though the sale may have been effected by a direct agreement between the defendant and the purchaser, fully submitted the two contentions of plaintiff that there was an express agreement to divide the commissions, and that if there was no express agreement plaintiff was the procuring cause of the sale made. Walker v. Baldwin, 106 Md. 619, 68 A. 25. Sec. 1033. Instruction properly refused, that if plaintiff knew defendant had only an option, he could not recover. In an action on a contract to procure a purchaser for de- fendant's land plaintiff contended that he found a purchaser and that the sale was not consummated solely because of de- fendant's defective title; defendant testified that he at one time told plaintiff he had only an option, and that plaintiff requested him, whenever he thought the title all right, to give him a chance to buy; afterwards defendant received a deed for the land, and he tendered a warranty deed thereof to the pur- chasers. Held, that it was not error to refuse an instruction that if plaintiff knew that defendant had only an option and that, under the agreement, a sale was to be made by plaintiff at not less than a specified amount and that his commission was to be all above that amount, plaintiff could not recover. Weaver v. Richards, 150 Mich. 20, 113 N. W. 867, 14 D. L. N. 617. See also Sec. 87. Sec. 1034. Instruction that plaintiff found purchaser ready, able and willing, erroneous on that theory. In an action for commissions for the sale of a lease, where the petition alleged that plaintiff negotiated the sale of a lease, and after reaching an agreement whereby the purchaser, agree- ing to pay a certain price for the lease, the purchaser paid that amount to the defendant, an instruction based on the theory 810 AMERICAN LAW REAL ESTATE AGENCY. that plaintiff had found a purchaser ready, willing and able to buy the lease and brought him into communication with de- fendant, is erroneous because outside the scope of the petition. Northup v. Diggs, 128 Mo. App. 217, 106 S. W. 1123. Sec. 1035. Instruction against S. erroneous, as he was not liable in the absence of the agreement alleged. In an action on an agreement of defendant and one S. to pay plaintiffs a certain commission for negotiating an exchange of their properties, which agreement provided for payment of the commissions on both sides, if either party should refuse to carry out the exchange contract, and it appeared that defendant had defaulted although S. was ready, able and willing to per- form, it was error to charge that if there was a breach or alleged breach by defendant of the agreement to exchange, plain- tiffs had a cause of action against S. for his proportion of the commissions, since, as he was ready, able and willing to carry out the contract he was not liable for commissions in the absence of the agreement alleged. Goodman v. Linetzky, 107 N. Y. S. 50. For the same reason it was error to charge that irrespective of the agreement as to the payment of the commissions, plaintiffs had a cause of action against S. for his proportion of the com- missions. Id. Sec. 1036. Error not to give instruction that if broker knew consent of third person necessary for binding contract, he could not recover. In an action for commissions for procuring a purchaser of real estate, the defendant claimed that he was a joint owner with a third person, that the broker knew that the third person's consent to a conveyance was necessary, and that the third person refused to give his consent; and the court presented defendant's theory as a denial that plaintiff produced a pur- chaser ready, able and willing to purchase on terms satisfactory to defendant, the refusal to charge that if the broker knew that the consent of the third person was necessary before defendant could enter into a binding contract, and his consent could not be obtained, plaintiff was not entitled to a commission, was PLEADING, PRACTICE, ETC. 811 reversible error, though the court stated that he would leave the matter to the jury to take into consideration in arriving at the fac.. Jacobson v. Fraade, 10? N. Y. S. 706, 56 Misc. 631. See also Sec. 125. Sec. 1037. Instruction for plaintiff erroneous, where evidence shows absence of license. In an action to recover commissions on a sale or exchange of real estate, where the plaintiff describes himself in his state- ment of claim "as a dealer in real and personal property and in the regular course of business" made the sale or exchange in question, and it is admitted that plaintiff had not taken out a license as required by law, the statement of claim is admissible as evidence tending to show that the plaintiff is a real estate broker, and where the statement is supported by the evidence of two witnesses called by the defendant it is error for the court to give binding instructions for plaintiff. Sprague v. Reilly, 34 Pa. Super. Ct. 332. Sec. 1038. Instruction properly refused as assuming for plain- tiff, without hypothesising belief on the evidence. In an action for a broker's commissions, an instruction that plaintiff was entitled to a verdict for such damages as the jury believe from the evidence he has sustained from defendant's breach of contract was properly refused as assuming and in- structing a finding for plaintiff without hypothesising the belief on the evidence by the jury. Green v. Brady, 152 Ala. 507, 44 S. 408. See also Sec. 949. Sec. 1039. Instruction not objectionable as minimizing the issue of alteration of contract. Where, in an action on a written contract employing plaintiff as a broker to sell defendant's land, defendant pleaded that the contract had been altered and also denied that the plaintiff had secured a purchaser, an instruction that certain evidence was admissible as bearing on "the real testimony in this case," to-wit, whether plaintiff had furnished a buyer, was not objectionable as minimizing the issue of alteration in view of other instructions directly stating that if the jury find the con- AMERICAN LAW REAL ESTATE AGENCY. tract has been altered they must find for defendant. McDermott v. Mahoney (Iowa Sup. '06), 106 N. W. 925. See also Sees. 55, 73, 293. Sec. 1040. Instruction caused no prejudice to defendant when jury found no excess money was paid. In an action for commissions agreed to be paid per acre in a sale of property, instructions relating to plaintiff's claim to the excess of purchase money above a named sum cannot have prejudiced defendant when the jury expressly found that no purchase money was received in excess of that sum. Wilson v. Everitt, 139 U. S. 616, 11 Sup. Ct. 664; Gaume v. Horgan, 122 Mo. App. 700, 99 S. W. 457. Sec. 1040a. When not error to omit to charge as to respon- sibility of purchaser. "Where, in an action by a broker for commissions for procuring a purchaser of land, the evidence showed that the sale was consummated on the terms proposed by the owner, it was not error to omit to charge that the proof must show that the purchaser procured was able, ready and willing to complete the purchase on the terms prescribed. Lewis v. Susmilch, 130 Iowa, 203, 106 S. W. 624. Sec. 1041. Instruction not inconsistent with terms of contract in securing title, etc. In an action for commissions under a contract by which plaintiff was employed to assist defendant in acquiring a title to property for the purpose of effecting a consolidation of it with other property, a charge that plaintiff could not recover if the defendants were unable to effect a sale with the owner, and other persons in co-operation with defendant did so and effected a consolidation, even though defendant contributed to the purchase, was not inconsistent with the terms of the contract, since the thing contracted to be done was the securing of the title to the property and the making of the consolidation by plaintiff and not by another person unconnected with defendant. Bailey v. Carleton, 43 Colo. 4, 95 P. 542. PLEADINGS, PRACTICE, ETC. 813 Sec. 1041a. Charge in the alternative held inconsistent. Where, in an action by q broker for commissions for pro- curing a purchaser of real estate the evidence showed that he was employed to procure a purchaser willing to pay $16,000, for a commission of whatever was obtained in excess of that sum, that he procured a purchaser willing to pay $16,500 on condition that the owner should pay two and one-half per cent, thereof to the purchaser's agent as compensation in the trans- action, and that the owner refused to convey, an instruction that the broker could recover $500 and an instruction that he could recover the difference between $16,000 and the sum which the purchaser secured by him was willing to pay for the prop- erty, were inconsistent. Slayback v. Wetzel (Mo. App. '09), 123 S. W. 982. Compare Sec. 307. Sec. 1042. Instruction properly refused as to owner's good faith, where no evidence tended to show it. In an action for commissions for selling real estate it is not error to refuse to submit an instruction as to the owner's good faith in selling the real estate himself without regard to the agent or the payment of commissions where there is no evidence tending to show good faith by the owner in dealing with the agent with reference to the commission. Church v. Dunham, 14 Idaho, 776, 96 Pa. 203, 205. Sec. 1043. Instruction erroneous not based on hypothesis that jury must believe as contended by defendants. Where, in an action by a real estate broker for commissions, it was contended by him that he did not bind himself to sell the property or to furnish a purchaser, as contended by de- fendant, but he was to be paid if he simply introduced a person to whom a sale should be subsequently made by defendants, an instruction requested by defendants applying the general rule that a real estate broker employed to sell lands must bring about a sale or procure a purchaser ready, willing and able to purchase, not based on the hypothesis that the jury must first believe the contract to be as contended by defendants, was 814 AMERICAN LAW REAL ESTATE AGENCY properly refused. Mayer v. McCann, 136 111. App. 50, affirmed in McCann v. Mayer, 232 111. 507, 83 N. B. 1042. Sec. 1044. Instruction to find for defendant properly refused, where plaintiff's evidence is uncontradicted. Where, in an action on a contract to pay a real estate broker a specified commission per acre on wholesale sales, or sales of large tracts, to persons whom he introduced and who subse- quently purchased, the broker testified to the contract and the performance of it by introducing a person who afterwards purchased, it was not error to refuse to direct a verdict for defendant, as his (plaintiff's) evidence, standing alone and uncontradicted, authorized a verdict in his favor. Id. Sec. 1044a. Request to charge for defendant properly refused. The court, in an action to recover commissions for procuring a contract for defendant with one D. having charged that "plaintiff can not have commissions from both sides; it is claimed by the defendant that he was endeavoring to do that ; if that were true, while he was working for the defendant he can not recover in this action at all, provided you believe he was entitled to get a commission from D. as well," there was no error in refusing defendant's request for a charge that if, at the time of the making of the contract between plaintiff and defendant plaintiff was negotiating with D. to do the work himself, the jury must find for the defendant. Hume v. Flint, 11 N. Y. S. 431; Brady v. Rickey & Casey, 202 S. W. 170, Tex. Civ. App. . Sec. 1045. Instruction as to the value of land received in ex- change misleading. In an action for a broker's commissions where it was con- ceded that a commission of five per cent, was agreed on by the parties and the evidence as to the value of defendant's land and of that which he received in exchange was conflicting, a charge imposing as a condition upon defendant's right to succeed that he did not make a contract for five per cent, com- missions "as above explained" (meaning in a previous portion of the charge), and that defendant's land was only worth $4,000 PLEADINGS, PRACTICE ETC. 815 or less, while his equity in the land he received in exchange was worth only about $2,000 or $3,000, was misleading and preju- dicial. Jameson v. Hutchison (Tex. Civ. App. '08), 109 S. "W. 1096. Sec. 1046. Instruction properly refused to give verdict for defendant, where suit was prematurely brought. In an action for a broker's commissions for effecting an exchange of property, a requested charge that if defendant agreed to pay a commission on a sale of the land conveyed to him in exchange and the land had not been sold the jury should find for the defendant, was properly refused, since, under such circumstances, they should find for defendant without prejudice to sue in the event of a sale of the land. Id. Sec. 1046a. Error in refusing to direct a verdict for defendant. In an action by a real estate broker against the owner of real estate to recover a commission for procuring a purchaser of the property, with whom the owner makes a contract of sale, which he afterwards refuses to consummate, the trial court errs in refusing to direct a verdict for defendant where it appears that the broker originally approached the owner at the suggestion of the prospective purchaser for th sole purpose of getting the property for the latter; that without disclosing the name of the purchaser to the owner he made ax offer for the property at the price named by the purchaser which was less than that fixed by the owner, which offer the owner refused; that his explanation of his many subsequent visits to the owner which resulted in a contract of sale at the original price fixed was that he was trying to get the property for the purchaser; that, accepting his statement as true that the owner employed him to act as his agent and promised to pay him a commission, he tried to induce the owner to reduce the price in the interest of the purchaser, and that, according to his own statement, he was trying to get the property as cheap as he could for the buyer. Harten v. Loffler, 31 App. D. C. 362. See also Sec. 314. 816 AMERICAN LAW EEAL ESTATE AGENCY. Sec. 1047. Instruction erroneous, that jury could not con- sider that defendant was surety on plaintiff's note. An instruction, in an action for a real estate broker's com- missions, that the jury in arriving at a verdict could not con- sider testimony that defendant went on plaintiff's note as surety, or that defendant had been sued on the note, was erroneous, the testimony being relevant to the issue as to the terms of the contract between the parties. Yates v. Brattam (Tex. Civ. App. '08), 111 S. W. 416. See also Sec. 817b. Sec. 1047a. Court upheld in peremtorily instructing jury to find for defendant. Appellants, real estate agents, hearing that appellee, who was absent from the State, w r ished to sell his farm, wrote to him that they had a purchaser for it, asking him to fix his lowest price and allowing commissions. Appellee wrote, naming $225 per acre as his lowest net price, and saying "whatever your price is for selling must be added to this." There was no other correspondence and nothing further was ever said by appellants to appellee as to the sale of the farm. Four months after the passing of the letters appellee sold the farm for $200 an acre to a person with whom appellants were negotiating for its sale, but with whom they never made any contract. In this action by appellants against appellee to recover commissions for making the sale. Held, that upon proof of the facts stated the court did not err in giving peremptory instructions for defendant; as appellants did not show that they ever procured a purchaser on the terms named, or by the wrongful act of appellee to have been prevented from doing so, they can not recover. Hobbs v. Miller, 14 Ky. L. R. (abst), 719. Compare Sec. 446. Sec. 1047b. Instruction that sale by defendant was made on day prior to sale by plaintiff, upheld. Before plaintiff reported a sale of the property, defendant, on the ninth day of the month, through another agency, signed a written agreement for a sale of the property for the agreed consideration, $1,000 to be paid in cash on delivery of the agreement and the balance on delivery of the deed, with abstract PLEADINGS, PRACTICE, ETC. 817 showing good title. The vendee almost immediately accepted the proposition in writing and notice was immediately given to defendant of the sale, but by agreement the payment of the $1,000 was deferred until the next morning. At about nine o'clock on the tenth, plaintiff sold the property and received part payment therefor from another person. The vendee under the first contract met defendant at the appointed hour and just as the deal was being completed plaintiff appeared with his purchaser, and was then, for the first time, informed of the prior sale. Defendant, in an action on the contract, testified that the agent through whom the sale was made which the de- fendant accepted, found the purchaser and sold the property before the plaintiff made a sale. Held, that the sale which was accepted by defendant was made on the day prior to the sale by plaintiff, and an instruction to that effect was correct. Tuffree v. Bienford, 130 Iowa, 532, 107 N. W. 425. Sec. 1047c. Charge proper that unless jury find contract made on day alleged must find for defendant. Where, in an action by a broker for commissions for a sale of land, the petition declared on a verbal contract made on a cer- tain day, and specifically set forth the terms of the agreement and its performance by plaintiff, an instruction that unless the jury believe that defendant expressly employed plaintiff on the day named as his agent to sell the land, they should find for defendant was proper. Fortran v. Slower s (Tex. Civ. App. '08), 113 S. W. 631. Compare Sec. 887. Sec. 1047d. Modification of instruction held to be proper. In an action for broker's commissions, an instruction that "merely procuring a purchaser to enter into a contract for the purchase of property does not entitle a broker to commissions, unless such persons are ready, willing and able to make the pay- ments * * * named in the contract, ' ' was properly modified by adding, "unless the seller accepted the purchaser." Fox v. Ryan, 240 111. 391, 88 N. E. 974, See Sec. 24. 818 AMERICAN LAW REAL ESTATE AGENCY. Sec. 1047e. Instructions improperly refused. (1) Where, in an action for broker's commissions in inducing a contract for an exchange of land for an interest in a stock of goods, defendant claimed that he was induced to sign the con- tract, which he subsequently refused to complete, because of false representations that the stock was unincumbered, and that the owner refused to complete the contract unless defendant would pay off the incumbrance on the goods, amounting to $2,000, the court erred in refusing to charge that if the jury found that, at the time of the contract, the owner of the goods falsely repre- sented that the goods were unincumbered, and defendants were influenced thereby to execute the contract, they should return a verdict for him; since, if such misrepresentation was established, it invalidated the entire contract and rendered it unenforceable against defendant, unless the goods were denuded from their in- cumbrance. Webb v. Durrett, 136 S. W. 1189, Tex. Civ. App. . (2) Instruction that if a broker, having a contract for a com- mission of 10%, after securing a purchaser for $13,000, procured owner to agree to take $10,500 net, without informing him that the purchaser was to pay $13,000, defendant could not recover commission; held, improperly refused. Cardoza v. Middle Atlan- tic Em. Co., 82 S. E. 80, 116 Va. 342. (3) In an action to recover for services in an alleged sale of land under a contract for a division of commissions, it was error to refuse to charge that intestate could not recover for a sale of a sixth interest in the land, if it was agreed that the contracted compensation should be paid out of the sale of the remainder un- der a subsequent option. Smith v. Crane, 154 S. W. 857, 169 Mo. App. 695. (4) In an action by a real estate broker for a commission for procuring a tenant for defendant, it was error to refuse a charge requested by defendant, that if plaintiff introduced S. to defend- ant as a prospective tenant for one store, and S. afterwards ap- plied to defendant, either on his own behalf or for himself and others, for a lease of a number of stores, this would not give plain- tiff a claim for commissions, where the action was not to recover a commission for procuring a tenant for one store, but for pro- curing a lease to K. for nine stores. Meyer v. Improved Property Holding Co. of N. Y., 122 N. Y. Sup. 296, 137 App. Div. 691. PLEADINGS, PRACTICE, ETC. 819 (5) Where, in a suit for a broker's commission, defendant pleaded that he had paid H. a commission, as the procuring cause of the sale, a requested charge that such payment, if any, would be no defense to plaintiff's action, and could not be construed for that purpose, should have been granted. Stephenson v. Jackson, 128 S. W. 1196, Tex. Civ. App. . (6) In broker's action, instruction authorizing recovery if $20,000 or more was obtained for the property; held, improperly refused, the charge given allowing recovery only if jury believed $27,000 was obtained. Crass v. Adams, 175 S. W. 510, Tex. Civ. App. . (7) An instruction that the issue was, whether a valid con- tract was made between defendant and C., that the burden of proving this was on the broker, and that, though such contract was made, defendant could not be held liable, unless he failed to perform it in some material point; held, improperly refused. Cardozo v. Middle Ail Emi. Co., 82 S. E. 80, 116 Va. 342. (8) That a broker acting for both parties to an exchange could not, of itself, warrant refusal of instruction that notice to broker was notice to principal. Ward v. Johnson, 170 P. 538, 87 Or. 314. (9) In a broker's action for commissions on the sale of a farm, where plaintiff did not file his amendment first asserting an ex- clusive agency until he was in the trial, about four years from filing of the original petition, the court should have instructed, on defendant owner's request, that the matter was a circumstance to be weighed in connection with all the evidence. Thomas v. Wychoff, 174 K W. 26, Iowa Sup. . Sec. 1047f. Instructions upheld by reviewing court. (1) In an action for commissions for a sale of real estate based on a contract fixing the compensation at the price secured above a certain sum; held, that the court was warranted in giv- ing peremptory instruction in favor of plaintiff. Davidson v. Zerger, 181 111. App. 113. (2) In an action to recover commissions for negotiating ex- change of real estate for defendants, directing a verdict for plain- tiffs held not improper. Rothlaum v. Solomon, 187 111. App. 338. (3) Where a broker did not predicate his right to commission on the theory that he was employed to sell defendant's farm and 820 AMERICAN LAW REAL ESTATE AGENCY. did sell it, but admitted that defendant sold the farm himself, an instruction that if defendant contracted to pay plaintiff a com- mission on the purchase price, provided plaintiff sold the farm for defendant, they should find for defendant, was not objection- able as refusing plaintiff a recovery, even though he was employed and may have made the sale. Stoner v. Nail, 148 S. W. 8, 149 Ky. 124, opin. mod. on re., 150 S. W. 648, 150 Ky. 511. (4) In a broker's action for commissions for procuring an offer of a loan, in which defendant claimed that his offer as to a loan was not an exclusive privilege, and had expired when the client agreed to make the loan, an instruction on the question; held, not inconsistent with itself and confusing. West v. Hudson, 137 N. W. 668, 171 Mich. 669. (5) In an action by a broker to recover one-half of the commis- sion which he asserted defendant agreed to share with him, a charge held correct. Minds v. Reyes, 155 N. W. 493, 189 Mich. 629. (6) In an action by a broker for compensation for procuring a purchaser, an instruction held not open to the objection that it was not justified by evidence. Moore v. King, 178 S. W. 124, Mo. Sup. . (7) Instruction in an action by a broker for breach of con- tract; held, not erroneous for failing to formally limit the jury in assessing damages. Id. (8) In a broker's action against another broker for a commis- sion, court's statement of plaintiffs contention held to have sup- port in the evidence, Nevins v. Hughes, 84 S. E. 769. 168 N. C. 477. (9) In an action by a broker for commissions, an instruction that one who signs a contract drafted by his own adviser, can not say he did not understand it was not in conflict with another, that plaintiff could not recover if defendant understood that his apple crop was reserved where the first related to defendant's claim that he did not know that he was signing a contract. Sill v. Ceschi, 140 P. 749, 167 Gal. 698. (10) In an action for commissions on a sale of real estate claimed to have been made by plaintiff for defendant, it is not error in an instruction to use the word "listed" in the same sense . that it had been frequently used in the testimony, and as it is PLEADINGS, PRACTICE, ETC. 821 understood in ordinary conversation. Wright v. Olson, 191 111. App. 272. (11) In an action by brokers for commission for procuring a purchaser for land, an instruction on the question of exclusive contract was warranted by evidence tending to show that defend- ant agreed to wait until a certain day, and not to sell without giving notice to plaintiffs. Reimers v. Pierson, 113 P. 436, 58 Or. 86. (12) An instruction in a broker's action for commissions; held, not erroneous as conflicting between the proofs relating to an implied promise and those relating to an express promise. Carl v. Wolcott, 156 S. W. 334, Tex. Civ. App. . (13) Instruction submitting, whether commissions should be paid on a broker procuring a contract of exchange or on the ex- change being completed; held, proper. Ball v. Davenport, 152 N. W. 69, 170 Iowa, 33. (14) An instruction in an action by a broker for commissions for procuring contract for exchange of real estate; held, to deal only with the question of the alleged failure of the minds of the parties to meet, "of which there is no evidence." Id. (15) An instruction given on a broker's right to recover a commission, and on the owner's right to withdraw the land from the market and to change the price, to avoid liability for a com- mission; held, not erroneous. Culbertson v. Sheridan, 144 P. 268, 93 Kan. 268. (16) Where, in an action for broker's commission, there was evidence that plaintiff had told defendant that he would have nothing further to do with the purchaser, after he had withdrawn a prior offer, the court properly charged that if the jury found plaintiff so stated, defendant was entitled to employ another broker to sell the property to such purchaser, and, under such circumstances, plaintiff could not recover. Woods v. Lowe, 92 N". E. 772, 207 Mass. 1. (17) In an action by a broker for commissions on a sale of land, the issues raised at the trial were, whether plantiff with- drew from further negotiations with the prospective purchaser to whom a sale was finally made through another broker, and whether the offer by such purchaser was communicated to defend- ant. Held, that the court adequately submitted the issues by 822 AMERICAN LAW REAL ESTATE AGENCY. charging that, if the plaintiff refused to further deal with the purchaser, defendant was justified in employing another broker to do so, and, in such case, plaintiff would not be entitled to com- pensation, that if the sale was wholly due to the efforts of the other broker, plaintiff could not recover, but that if plaintiff's employment had not been terminated, the jury might find that plaintiff was the efficient cause of he sale, if they were satisfied that it was in consequence, though not absolutely and entirely, that the sale was made, and that if there was a bona fide offer to purchase made by the purchaser to the plaintiff, which plaintiff wrongfully failed to communicate to defendant, whereby he was injured, plaintiff failed in his duty and could not recover. Id. (18) An instruction stating matters essential to the validity and the requisite proof of the contract relied on by plaintiff, in an action for compensation for procuring a purchaser for defend- ant's farm; held, proper. Tenner v. Joslin, 155 N. W. 762, 132 Minn. 1. (19) In an action for commissions, an instruction that the broker to recover must procure a purchaser ready, willing and able to purchase on the terms fixed by the owner; held, not er- roneous, where plaintiff testified to a different contract from that proposed by the owner. Oilfillan v. Schmidt, 151 S. W. 161, 167 Mo. App. 709. (20) Where certain instructions in an action for broker's com- mission required a finding that plaintiff must have "secured" a purchaser for defendant's land, the word "secure" meant to "ob- tain," not being synonymous with "get," "obtain" and "attain," one definition of which is, to "procure"; and hence, the instruc- tions were not objectionable for failure to require that plaintiff was the "procuring cause" of the sale. Ross v. Major, 163 S. W. 880, 178 Mo. App. 431. (21) An instruction that, unless a definite time was specified in the contract in which plaintiff was to sell, lapse of time was immaterial, if not unreasonable; held, not misleading. Tull v. Starmer, 176 S. W. 511, 188 Mo. App. 713. (22) In an action by brokers for commission, instruction to find for plaintiffs if they procured a person ready, willing and able to purchase on the "terms" authorized; held, not erroneous for failure to use the expression, "exact terms." Thompson v. DeLonfj, 140 P. 427, 40 Okl. 718. PLEADINGS, PRACTICE, ETC. 823 (23) The clause of an instruction that a real estate agent "is entitled to his commission when he produced the landowner a purchaser who is ready, able and willing to buy the land on the terms thereof," is not inconsistent with one that "plaintiff must show that he brought together defendant and the purchaser, and the purchaser was induced to buy defendant's farm, and his ef- forts were the procuring cause of the sale." Peterson v. Bogner, 117 P. 805, 59 Or. 555. (24) An instruction, in an action by a broker for commissions, that the original price at which he was authorized to sell was a certain amount, yet, if afterwards the parties made a new con- tract whereby the price at which plaintiff could sell was raised, he must prove he produced a party ready, able and willing to buy at the latter price, does not require plaintiff to prove defendant's defense. Id. (25) In an action for a commission on a sale of machinery and lease of a mill, modification of an instruction requested by defendant as to tempQrary suspension of negotiations; held, cor- rect. National Milling Co. v. Kirby, 94 A. 149, R. I. Sup. . (26) In an action by a broker for commission for procuring an exchange of real estate instruction submitting the question whether an agreement for an exchange was made, and making the right to recovery dependent on an affirmative finding; held, proper. Lan- ham v. Cockrell, 152 S. W. 189, Tex. Civ. App. ., judg. aff., 194 S. W. 936, Tex. Sup. . (27) An instruction, at the defendant's request, in an action to determine which of two real estate brokers was entitled to the commission for selling the land, that where real estate was listed for sale with several real estate agents, acting independently, the one who succeeded in bringing about the contract between the seller and purchaser was the one who earned the commission, re- gardless of the fact that some other real estate man may have in- troduced the purchaser to the seller, if error, as excluding the theory that the broker who is the procuring cause of the sale is en- titled to the commission, did not constitute reversible error, where instructions were given in plaintiff's behalf, that if the pur- chaser of the land had it first brought to his notice by plaintiff, who, at his solicitation, disclosed the owner's name, and the in- formation received from plaintiff was the primary cause of the 824 AMERICAN LAW REAL ESTATE AGENCY. purchaser afterwards buying the land, then plaintiffs were entitled to recover, even though defendants showed the purchaser the land and assisted in closing the trade, and that if the purchaser prom- ised plaintiffs to take it if it suited, before defendants brought the land to the purchaser's notice, and the owner was notified by the plaintiffs of that fact, and the defendants afterwards took the purchaser to show him the land, then plaintiffs were entitled to recover, even though they did not bring the purchaser and owner together, and did not close the trade for the land. Painters v. Kilgore, 101 S. W. 809, Tex. Civ. App. . (28) An instruction as to broker's right to commission, where he did not personally conduct the negotiations, and was not pres- ent when the bargain was closed, and where his principal did not, at the time, know that he found the purchaser, was not inap- plicable to the facts, where plaintiff did not personally negotiate the exchange, and was not present when it was made. McKinney v. Thedford, 166 S. W. 443, Tex.' Civ. App. . (29) Though there may be a shade of difference between the expression "procuring cause" and "efficient cause," an instruction authorizing a verdict for the broker, if he was the procuring cause of the sale, is correct. Bogley v. Foley, 144 P. 25, 82 Wash. 222. (30) In broker's action for compensation fixed by written con- tract authorizing him to find a purchaser, instruction as to the intention that the purchaser's proposition should be construed as a compliance with the contract; held, proper. John E. DeWolf Co. v. Harvey, 154 K W. 988, 161 Wis. 535. (31) Where the evidence on the part of defendant, in a bro- ker's action for commission, was that it was agreed between plain- tiff, the purchaser and himself, that the contract should be left with him, and that if his wife would sign, or accept it, it should be regarded as a sale, otherwise not, and there was no contention that the exact terms of the sale were agreed upon when the land was listed, an instruction that if plaintiff, defendant and the pur- chaser agreed that the contract should be left with defendant, who would accept it if his wife would sign it, and his wife re- fused to sign it, plaintiff could not recover, was proper, as pre- senting the issue tendered by defendant. J. N. Dunlop & Go. v. Anderson, 133 N. W. 910, 153 Iowa, 488. PLEADINGS, PRACTICE, ETC. (32) In an action by a broker for commissions for procuring a purchaser of real estate, where the purchaser testified that the broker had proposed that the purchaser and the broker should buy the land together, and the broker, to some extent, corroborated the purchaser, a charge that if the broker proposed to the pur- chaser that they should buy the property together, there could be no recovery, was justified by the evidence. Schlagle v. Russell, 80 A. 164, 114 Md. 418. (33) Instructions, in action for commissions for assisting an exchange of property, concerning plaintiffs as acting for both par- ties; held, not inconsistent. T. A. Hill & Son v. Patton & Schwartz, 160 S. W. 1155, Tex. Civ. App. . (34) An instruction that plaintiffs could recover, if they pro- cured a buyer themselves, or through their agent R., was not ob- jectionable on the ground that R. was the buyer's agent, and that an agent can not delegate his authority, without his principal's consent, and can not represent both parties, where the evidence showed that R. represented the buyer only, and the brokers, on both sides, represented their respective principals in the negotia- tions. McEinney v. Thedford, 166 S. W. 443, Tex. Civ. App. . (35) An instruction that plaintiffs, suing for commission, were not partners of R., who represented the other party, and that they may recover, though R. got all the commission from the other party, was not objectionable, on the ground that the agent who receives secret commissions from the other party can not re- cover, where the evidence showed that the brokers on both sides represented their respective principals only. Id. (36) An instruction, in an action by a vendor of land against a broker who effected a sale, for damages for fraud and faithless- ness; held, not subject to objection requiring the jury, if finding for broker, to find that he acted in good faith. Thomas v. Mohn, 193 S. W. 924, Tex. Civ. App. . (37) In an action to recover commissions for services in a land deal involving two separate transactions, a given instruction held not an instruction to find for plaintiff in the sum of $1,280, or finding for defendant, but amounted to an instruction that burden was on plaintiff to prove the contract alleged, and that she had performed services in consummation of one or both of 826 AMERICAN LAW REAL ESTATE AGENCY. deals mentioned, which entitled her to claim commission of one dollar per acre on the land exchanged by defendant. Kamp v. Madison, 161 N. W. 809, S. D. Sup. . (38) In broker's action for commission against owner, instruc- tion that plaintiff must prove his employment, and mere fact that he asked defendant at what price he was willing to lease his prop- erty, did not establish relation of principal and agent; held, suffi- ciently favorable to defendant. Symes Inv. Co. v. De Sollar, 165 P. 985, Colo. Sup. . (39) In an action by broker for commission for procuring an exchange of realty, instruction submitting the question whether an agreement for exchange was made, and making the right to recover dependent on affirmative finding; held proper. Lariham v. Cockrell, 194 S. W. 936, aff. judg. Civ. App., 152 S. W. 189, Tex. Sup. . r (40) In a broker's action for commissions, court held to have properly directed a verdict, because evidence would not have war- ranted an inference that plaintiff was the procuring cause of the sale. Huttig v. John Paul Lumber Co., 243 F. 539, 156 C. C. A. 237. (41 )" In a broker's action for commissions for negotiating a resale of land, instruction as to duress as a species of fraud ; held correct. Snyder v. Samuelson, 167 N". W. 287, Minn. Sup. . (42) In an action by brokers to recover of defendant broker half-commission for having disclosed to him a purchaser for property of which he was the exclusive agent, instruction that, if jury found plaintiffs contracted with defendant for half-com- mission, it was not necessary for them to have produced a signed purchase contract, even though they endeavored to; held, proper and necessary, to keep the real issue before the jury. Baker v. Bakewell, 208 S. W. 844, Mo. App. . (43) Brokers employed by the owner of city property to ef- fect an exchange of the same for farm land; held, not middlemen, for the owner of the city property authorized them to receive from the owner of the farm land note for the exchange; and hence, where they misrepresented to the owner of the city prop- erty the price of the farm land, an instruction, in an action to recover secret profits thus obtained, was not objectionable in fail- PLEADINGS, PRACTICE, ETC. 827 ing to present the question whether such brokers were middlemen. Schmidt v. Wallinger, 99 S. E. 680, 125 Va. 361. (44) In broker's action for commission for making a sale of defendant's farm, it was proper to state to the jury that if evi- dence showed an agreement for compensation as claimed by de- fendant, the verdict should be for him. Mooney v. Burgess, 172 N. W. 308, Minn. Sup. . (45) Instruction that burden was upon plaintiff to show, by a fair preponderance of evidence, that he was to receive a com- mission per acre, as he claimed, was not erroneous. Id. (46) An instruction that to be the procuring cause of the sale, it was not necessary that plaintiff broker himself conclude all the negotiations culminating in a sale of the property, if he set in motion the machinery by which the work was done, was well framed. Finney v. Newson, 82 S. 441, Ala. Sup. . (47) In a broker's action for commissions, on sale of a farm, an instruction that, whether the listing agreement between the parties was exclusive or not, all plaintiff broker had to do, to earn commission, was to find and produce a purchaser ready, able and willing to buy, etc., was not objectionable as eliminating the element that the broker must be the procuring cause of the sale. Thomas v. Wychoff, 174 1ST. W. 26, Iowa Sup . (48) An instruction, that if a broker introduces a prospective purchaser to the seller, who undertakes to conduct the negotia- tions, and finally sells the property, he thereby waives the right to insist on the terms of the contract in that respect, and is liable for a reasonable commission, and the contract may be introduced as a guide in arriving at what is reasonable compensation, was well framed. Finney v. Newsom, 82 S. 441, Ala. Sup. . (49) Where plaintiff purchased land which defendants', as brokers, sold for the owner; held, that in an action for damages on the theory that defendants represented that the owner's price was $75 an acre, when, in fact, it was only $50, and by such fraud made a large profit, it was not improper for the court to add to plaintiff's requested instruction, submitting the question of false representation, the question whether the representation as to price was made without the knowledge and consent of the owner. Hays v. Smith, 213 S. W. 451, Mo. Sup. . (50) An instruction that it was conceded defendants told plain- 828 AMERICAN LAW REAL ESTATE AGENCY. tiff they were acting as owner's agents, and that any statement by them as to what the owner would take for land does not alone constitute fraud; held, warranted. Id. (51) In a broker's action for commission, no precise form of language is necessary in an instruction, it is only necessary that they cover the idea that the agent must have been the procuring and inducing cause of the sale. Schnaber v. Estes, 218 S. W. 908, Mo. App. . (52) In an action by a broker for commission for effecting a sale of land for defendants, where defendants asserted that it was the understanding between the parties that they should pay only a part of the commissoin and that the purchaser should pay the remainder, and that they signed an agreement on condition that it should be signed by the purchasers, a requested instruction that a broker can not represent both parties, without their mutual knowledge and consent; held, warranted. Murphy v. Willis, 219 S. W. 776, Ark. Sup. . (53) An instruction, that if the jury found for plaintiff, they should allow her such sum as defendant agreed to pay out of the purchase price, though it might have been better worded, conveys the idea that plaintiff could receive the agreed commission based on the purchase price, if a sale had been consummated. Broivn v. Russell, 221 S. W. 791, Mo. App. . (54) In a broker's action for commission in which owner claimed brokerage contract provided for commission only if land sold for price in excess of specified amount, instruction that jury should find for the owner, if the agreement required broker to find a purchaser at a sum that would yield only such amount; held, to sufficiently present such defense. Kaufman v. Jean, 225 S. W. 239, Ky. Ct. App. . (55) In agent's action for commission, an instruction that, where two agents are employed to find a purchaser, and each makes an effort to sell the property to the same person, the owner is liable to the one "who is the proximate, efficient and procuring cause" of the sale, was proper, where the owner, without plain- tiff's knowledge, sold it to that person when brought to him by another agent. Osburn v. Moore, 193 P. 892, Kan. Sup. . PLEADINGS, PRACTICE, ETC. 829 Sec. 1047g. Instructions improperly given. (1) In an action to recover commissions for procuring a pur- chaser for real estate; held, that the direction of a verdict in favor of defendant was error under the evidence. Nudelman v. Haffen- berg, 185 111. App. 91. (2) In a broker's action for commissions against A., where evi- dence indicated that A.'s broker "E.", who claimed to own the property, though the record title was in A., was the person who negotiated with the broker, instructions were erroneous, as making the dummy personally liable on the contract as a matter of law. Rubin v. Ernst, 151 N. Y. Supp. 849. (3) Instruction that if the owner sold in breach of his con- tract for less than $13,000, the agent was entitled to his commis- sion, was misleading, so as to call for a new trial, where, after the sale a rebate to the purchaser was made by the owner for a short- age of half an acre, the question being whether the land was sold for $13,000. Briggs v. Hall, 129 P. 288, 20 Cal. App. 372. (4) In an action for broker's commission, evidence held not to sustain an instruction requested. Sholine v. Harris, 123 P. 330, 22 Colo. App. 63. (5) Instruction in an action by a broker for his commission; held, ambiguous. Hughes v. Kerr, 141 P. 510, 26 Colo. App. 162. (6) Where an intestate was to receive a specified sum for ser- vices in assisting in getting an option and other services with ref- erence to certain land, an instruction that defendant agreed to pay intestate for getting an option and rendering other services in consummating a sale was improper, as imposing on intestate duties not required by the contract. Smith v. Crane, 154 S. W. 857, 169 Mo. App. 695. (7) Where brokers, in a suit for commissions for inducing an exchange of property, alleged that they were employed to interest D. in making an exchange, and were not to be paid unless the exchange was made on terms satisfactory to defendants, an in- struction authorizing a finding in plaintiff's favor, if the contract was that plaintiffs should induce or "attempt" to induce D. to make the exchange, without regard to whether the exchange was made after "attempt" on defendants' part to cancel the agency, etc., unless the jury found that the attempted revocation of the agency was made in "entire" good faith, was objectionable as not 830 AMERICAN LAW REAL ESTATE AGENCY. within the issues, and also as calculated to discredit defendants' theory of the transaction by the use of the word "entire," and cause the jury to infer that their good faith must have been proved by more satisfactory testimony than was required to prove other facts. T. A. Hill & Son v. Patton & Schwartz, 141 S. W. 1025, Tex. Civ. App. . (8) In an action by a broker for commission, instruction au- thorizing a recovery and refusal of a requested charge on the sub- ject; held, reversible error. Arlington v. Layden, 175 S. W. 475, Tex. Civ. App. . (9) In an action for brokerage commission for procuring pur- chaser for real estate belonging to defendant's mother, an instruc- tion that the question of ownership of the property was "altogether immaterial" ; held misleading, when the controverted issues of fact were, whether plaintiff did not know that defendant was acting merely as agent of the owner in the transaction, and whether de- fendant made any personal promise to pay the commission. Yuck- man v. Considine, 191 111. App. 192. (10) As defendant is entitled to have an oral instruction given presenting his theory of defense, that there could be no recovery for broker's commission if he was not the owner of the property nor authorized to offer it for sale, and plaintiff so knew prior to his negotiations with the purchaser. Id. (11) In an action by an agent for a commission provided for in an application for a loan, prepared by him and read to de- fendant, where the defendant claimed that the contract was in- duced by the agent's fraud in not reading these parts providing for a commission, the plaintiff claimed that before the defendant took any steps under the contract, plaintiff sent defendant a letter referring to the commission and explaining everything, it was a question for the jury whether a new contract was made, regardless of the application, and an instruction that the agent was entitled to recover if the defendant received the letter was erroneous. Car- roll v. Park, 136 S. W. 961, 156 Mo. App. 446. (12) In an action for commission, instruction disregarding the discharge of agent before sale; held, erroneous. Graf & Case Realty Co. v. Lovell, 163 S. W. 877, 180 Mo. App. 706. (13) In an action for a broker's commission for procuring a tenant for defendant's premises, an instruction that plaintiff PLEADINGS, PRACTICE, ETC. 831 should recover if defendant agreed to pay the plaintiff a commis- sion for securing a tenant, and plaintiff secured such tenant and introduced him to defendant "for the purpose and with the intent of leasing the premises in question, for a period of ten years," and that afterward the defendant did rent such premises to that per- son, or if no contract Wb,s made between plaintiff and defendant, that plaintiff, with the consent of defendant, procured a tenant for the premises, and defendant accepted such services, was mis- leading, as the intent of the broker in introducing the prospective tenant was not a sufficient basis for a recovery, in the absence of a contract to pay a commission, and a showing that the party in- troduced was able and willing to make a lease for tenant. Floore v. J. T. Burgher & Co., 142 S. W. 939, Tex. Civ. App. ., judg. aff., 174 S. W. 819, Tex. Sup. . (14) In an action for broker's commission for selling realty, a requested charge making the right to recover dependent upon defendant's accepting conditions that he would be required to pay a commission, was objectionable. Toland v. Williams & Wiley, 129 S. W. 392, Tex. Civ. App. . (15) In an action for commissions, an instruction that if the original contract "was changed by mutual agreement for the mutual advantage of both parties," was misleading, as permitting an application that the modified contract might not have been binding, because not as favorable to plaintiff as the original con- tract. Bailey v. Spalding -Livingston Inv. Co., 136 P. 962, 43 Utah, 535. (16) In an action for commissions; held, error to instruct on the theory that the owner, by accepting a check in part payment, ratified the broker's contract of sale with the prospective pur- chaser, of which the owner had not been advised, and that he had never signed. Cardozo v. Middle Atlantic Emi. Co., 82 S. E. 80, 116 Va. 342. (17) Refusal to instruct that if the owner originally authorized a sale on certain terms, and subsequently accepted prospective purchaser's check for collection, giving a receipt, stating the terms of payment of the commission, such papers constituted the only contract, and there could be no recovery unless failure to collect the check was due to the defendant's fault; held, improper. Id. (18) In a broker's action for commission, there was evidence 832 AMERICAN LAW HEAL ESTATE AGENCY. to warrant a finding that his efforts to make a sale failed, and that it was finally made to the same party by another broker with whom defendants had made a like contract, a refusal of charges that if the second broker induced the buyer to purchase, after plaintiff had failed to do so, verdict should be for the defendants, was error. Scott v. Cleveland, 183 S. W. 197, 122 Ark. 259. (19) Instruction to the jury to find for owner, unless they be- lieved, from the evidence, that the agent had established, by a preponderance of the evidence, that agent named terms to a pur- chaser, who was ready, willing and able to accept; held, improper. Hurling v. Frey, 182 111. App. 547. (20) Where the price at which a broker, without an exclusive agency, could sell, was not fixed, it was error to instruct that it was immaterial that the owner did not know that the prospective purchaser had corresponded with the broker, if the broker pro- cured a purchaser 'able and willing to buy. Seevers v. Cleveland Coal Co., 138 N". W. 703, 158 Iowa, 574, Ann. Gas. 1915 D, 188. (21) Where there was evidence that a purchaser found by a broker was not disclosed to the owner, an instruction that if the broker "procured" a purchaser, the verdict should be for the broker, was misleading. Coppage v. Howard, 96 A. 642, 127 Md. 512. (22) In an action for a broker's commission for furnishing a purchaser for defendant's farm, the actual sale of the premises being conducted by defendant, without assistance from plaintiff, an instruction directing a finding for plaintiff, which omits any hypothesis of his being the procuring cause, and submits whether defendant, after plaintiff entered into negotiations with the pur- chaser, himself entered into negotiations directly with the pur- chaser, as a subterfuge to avoid the payment of commission, is error, there being no evidence of defendant adopting a subterfuge. Subletie v. Lowe, 133 S. W. 127, 152 Mo. App. 186. (23) In an action for a broker's commission, where the court had given instructions covering every phase of the case, it was error to instruct that, before plaintiff could recover, he must show, by the greater weight of the evidence, that he was the "prime cause" of the purchase, as the jury might infer from the use of the word "prime" that the cause must be first in order of time originally, and that something more definite was meant than PLEADINGS, PRACTICE, ETC. 833 was included in the other instructions as to the "procuring" cause. 8. J. Cox Real Estate Co. v. French, 142 S. W. 449, 160 Mo. App. 678. (24) In an action by a broker for compensation, where it ap- pears that a second broker had assisted in the deal, an instruction, that if the trade was solely made by the second broker and the defendant had paid him a commission, then plaintiff could not recover, is misleading, since the payment of the second broker could not affect plaintiffs rights. Weidemeyer v. Woodrum, 154 S. W. 894, 168 Mo. App. 716. (25) An instruction, in an action by a broker for commission; held erroneous, as tending to mislead the jury to believe that the sale must have been completed within the time limited by the option, in order for the broker to recover. Cole v. Crump, 156 S. W. 769, 174 Mo. App. 215. (26) In action for commission for obtaining a loan for con- tractors of Fidelity Co., instruction held erroneous, as submitting loan of a different character from that claimed to have been ob- tained by plaintiff. Bartlett v. Garrett, 175 S. W. 79, 188 Mo. App. 144. (27) An instruction permitting verdict in belief of plaintiff's own testimony was erroneous, the instruction should have sub- mitted the question of plaintiff's procuring cause. Id. (28) A requested instruction denying recovery of commission on a sale of machinery and lease of a mill, by the negotiations temporarily ended; held, erroneous. Nat. Milling Co. v. Kirby, 94 A. 149, R. I. Sup. . (29) Where, in an action for broker's commission, defendant claimed that he had paid a commission to H., who was the pro- curing cause of the sale, an instruction that if, after plaintiffs carried the purchaser to see defendant's land, they returned to town and did not close the deal, and the purchaser subsequently returned and purchased the land from H., the jury should find for defendant, provided plaintiffs had not shown, by a prepon- derance of the evidence that they had an exclusive agency for the sale of the land, was improperly allowed, without a further quali- fication that, if the jury believed the plaintiffs' act in showing land to the purchaser was not the proximate cause of the sale 834 AMERICAN LAW EEAL ESTATE AGENCY. being made by defendant to such purchaser. Stephenson v. Jack- son, 128 S. W. 1196, Tex. Civ. App. . (30) Evidence held not to justify peremptory instruction for the broker suing for a commission, where there was evidence that he was to have no commission unless a sale was consummated, and it did not indisputably appear that the failure, to consum- mate the sale was due to the owner's fault. Heath v. Hoffhines, 152 S. W. 176, Tex. Civ. App. . (31) In an action by a broker for commissions for procuring a purchaser, a charge directing the jury's attention to the acts of defendant's wife, as determining the plaintiff's right to a com- mission ; held improper, as being misleading. Alexander v. Smith, 61 S. 68, 180 Ala, 541. (32) Where an owner claimed that the prospective purchaser, upon examination of the abstract, refused to complete the pur- chase under any circumstances, an instruction held erroneous, as denying owner a reasonable time within which to correct defects in his title. Bunyard v. Farman, 161 S. W. 640, 176 Mo. App. 89. (33) In broker's action for commission on a sale which the purchaser failed to complete, instruction making owner's duty to sue to enforce the contract dependent entirely upon the advice given him by his counsel; held improper. Middle Atlan. Emi. Co. v. Ardon, 78 S. E. 588, 115 Va. 148. (34) In an action for commission, instruction that broker could not sue to compel the purchaser to perform the contract negotiated by the broker was erroneous. Cardoso v. Middle Atl. Emi. Co., 82 S. E. 80, 116 Va. 342. (35) The instructions, in a brokers' action for commissions for procuring an exchange of real estate, should have submitted the question of the owner's consent to the broker acting as agent for both parties, where the evidence raised that question. Goldsberry v. Thomas, 165 S. W. 1179, 178 Mo. App. 334. (36) Proof that a real estate broker declared an intention to withhold certain material information from his principal, without proof of actual expression of such information or of the vendor's ignorance thereof; held, not to authorize an instruction pro- pounding an inquiry as to the broker's bad faith. Peters v. Eiley, 81 S. E. 530, 73 W. Va. 785. (37) In an action for a broker's commission in procuring an PLEADINGS, PRACTICE, ETC. 835 exchange of real estate, where there was no special agreement as to the rate of commission, an oral charge to the jury that, if they found the issue for plaintiff, their verdict must be for a certain sum computed at a certain rate on the trade value; held, error under the testimony. Hovey v. Matteson, 188 111. App. 486. (38) Where, in an action for broker's commission, it was shown that, after the deal was closed, plaintiff requested defendant to mail her a check for $250 as her commission, not shown to have been merely an offer of compromise, it was error to charge, that if the jury found for plaintiff, their verdict must be for $750 and interest, on the theory that all the evidence showed that such was the customary commission. O'Donnell v. McElroy, 138 S. W. 674, 157 Mo. App. 547. (39) An instruction to find for plaintiff in the amount agreed upon with his principal; held erroneous, where the amount was undisputed. Tull v. Starmer, 176 S. W. 511, 188 Mo. App. 713. (40) Where, in a suit for broker's commissions, plaintiff's coun- sel gave notice that he elected to base plaintiff's right to recover on a quantum meruit, and the testimony varied as to the amount on which commission should be based, and as to the reasonable value of the services, the court erred in instructing that plaintiff's claim was for services on an agreed compensation, and in omit- ting to submit the question of reasonable value to the jury. Whit- ten v. Griswold, 118 P. 1018, 60 Or. 318. (41) Where there was no express contract to pay plaintiff a specified amount for services in procuring a purchaser for realty, so that he was only entitled to recover upon an implied contract for the reasonable value of such services, if at all, it was error not to so charge in an action for commission. Toland v. Williams & Wiley, 120 S. W. 392, Tex. Civ. App. . (42) In a broker's action for commission; held, entitled to in- struction on issue of his want of notice that buyer was procured by plaintiff, the several portions of general charge referring to such issue being too narrow under the evidence. Fawley v. Shel- don, 163 N. W. 585, Iowa Sup. . (43) Evidence in an action for commission on an exchange of lands; held, not to warrant an instruction on adoption by ratifica- tion of defendant of plaintiffs' act in finding a purchaser. Ander- son v. Walters, 194 S. W. 1153, Tex. Civ. App. . 836 AMERICAN LAW EEAL ESTATE AGENCY. (44) Instruction that burden was on broker to show that de- fendant listed land for sale at agreed commission, and that the broker found a purchaser ready, willing and able to buy at stipu- lated price, does not cover the ground of performance, for instruc- tion that broker could not recover if sale was on terms different from those named by defendant. Cooper v. Lyman, 194 S. W. 3, Ark. Sup. . (45) In an action by a broker to recover a stipulated commis- sion for an exchange of real estate between defendants and others; held, that a verdict for defendants should have been in- structed under the evidence. Zurek v. Ferfeckl, 199 111. App. 587. (46) Where broker authorized to sell realty on certain terms negotiated less favorable contract, which was entered into by owner an agreement that difference was to be paid out of broker's commissions, instruction that owner must pay full amount of commission while permitting broker to act as his agent; held, reversible. Paulson v. Reeds, 167 1ST. W. 371, N. D. Sup. . (47) In action for commission, evidence held insufficient to disclose any bad faith or fraudulent practice of broker, so as to warrant an instruction as to good faith on the part of agent toward his principal. Raleigh Real Estate Co. v. Noser, 95 S. E. 498, 175 N". C. 255. (48) In a broker's action for commissions, where there was no contract upon which defense was founded other than the express contract upon which broker had based claim, instruction that burden of proving a "special contract," was not to be paid if deal did not go through was upon defendants; held, erroneous. JacTcson v. Kohler, 124 N. E. 650, 111. Sup. . (49) Instruction that owner of realty is responsible for fraudu- lent representations of broker with whom defendants listed for sale, though owner did not instruct broker to make such repre- sentations and did not know that they were being made, was er- roneous. Ringer v. Wilkins, 183 P. 986, Idaho Sup. . (50) In broker's action for commission, founded upon a spe- cial contract and involving dispute as to terms thereof, instruction based upon a "hiring contract made without any conditions, the broker employed in the usual way"; held misleading, since in- struction should have been based on a particular contract. Hope- PLEADINGS, PRACTICE, ETC. 837 well Heights Dev. Co. v. Kagey-Marshall Realty Co., 102 S. E. 82, Va. Sup. . (51) In a broker's action for commission involving questions of whether the broker was the procuring cause, instruction to find for broker, if he was "instrumental" in bringing the owner and purchaser together; held, erroneous, in that broker is per- mitted thereby to recover commission on sale with which he was only remotely connected, and which was not induced or procured by his efforts, since broker may be "instrumental" in selling property, without having anything to do with finding a pur- chaser, so as to be the procuring cause thereof. Low v. Paddock, 220 S. W. 969, Mo. App. . (52) In broker's action for compensation for procuring party to land exchange transaction, instruction that broker could not recover railroad fare and expenses on trip to show the properties to be exchanged to defendant; held, misleading. Morrison v. Jackson 85 S. 573, Ala. App. . Sec. 1047h. Instructions properly refused. (1) The refusal of an instruction on plaintiff's right to re- cover commission sued for; held, not error. Glaum v. STcang, 152 N. W. 760, 129 Minn. 377. (2) Where a broker suing for compensation alleged a contract fixing no time for completion, instructions, with some support in evidence, on the theory that defendant withdrew the land from sale, and so notified the purchaser, were properly refused under the answer, pleading an agreement which, defendant claimed, ex- pired by limitation of time without performance, but not averring rescission of the contract alleged by the broker and the giving of notice thereof. Hall v. Olson, 114 P. 638, 58 Or. 464. (3) Plaintiffs, who were authorized to sell land for defendants, were not parties to a written contract between defendants and the purchaser, alleged to have been written in the form of an agency contract to sell, binding the purchasers to purchase the land un- sold after specified time, in order to deprive plaintiffs of their right to commissions. Held, that a requested charge that if the jury did not believe that the purchaser contracted to purchase the lands from defendants, and that defendants conspired to write the contract in the form adopted, in order to defraud plaintiffs 838 AMERICAN LAW EEAL ESTATE AGENCY. out of their commission, the jury should find for defendants, was properly refused as erroneously requiring plaintiffs to prove, as a condition of their right to recover, that the written contract was prepared to cheat and defraud them, and their cause of action being complete on proof that their purchaser agreed with the owner to buy on the terms authorized, and was ready, willing and able to do so, independent of the written agreement. Pope v. Ansley Realty Co., 135 S. W. 1103, judg. rev., 151 S. W. 525, 105 Tex. 440. (4) An instruction involving the good faith of the principal in revoking the authority of the broker; held, properly refused. Howard v. Street, 93 A. 923, 125 Md. 289. (5) In a broker's action for commission, instructions as to the necessity that prospective purchaser be able to complete purchase; held, properly refused as misleading, in view of the evidence. Rike v. McHugh <& Groom, 66 S. 452, 188 Ala. 237. (5a.) In an action for brokerage commissions on an exchange of real estate, a requested instruction based on the theory that the contract consummated between the defendant and purchaser was wholly different from the contract contemplated between the bro- ker and the purchaser; held, properly refused, the contract of ex- change not being wholly different from the contract as contem- plated between the broker and purchaser. Waddell v. Noser, 188 111. App. 302. (6) A requested instruction that a person employed to make a sale of property is not entitled to a commission, where he is not the efficient cause of the consummation of the transaction; held, properly refused, as tending to cause the jury to believe that plaintiff was not entitled to recover, unless he had directly brought about the trade exactly as consummated. Id. (7) Instruction in a broker's action for commission as to the procuring cause of the sale; held, properly refused, in view of the indefiniteness resulting from the unexplained use of the word "contributed." G. L. & H. J. Gross v. Tillinghast, 86 A. 721, 35 E. I. 298. (8) Defendant's requested instruction in an action for commis- sion for obtaining a purchaser for land who, after making a pay- ment, declined to consummate the purchase, assigning as a reason that the land did not all lie in one body, that unless owner or PLEADINGS, PBACTICE, ETC. 839 someone authorized by him represented to the purchaser that the land lay in a body, or ratified such representation, if such was made, plaintiff could not recover, was properly refused, it not be- ing necessary, as assumed, that plaintiff, or someone authorized by him, represented that the land so lay, etc., as there might be a recovery, though no such representation was made by any one. Agee v. Messer-Moore Ins. & R. E. Co., 51 S. 829, 165 Ala. 291. (9) Where, in an action for broker's services in negotiating an exchange of real property, the evidence showed an unconditional and enforceable contract, the court did not err in refusing to charge, that if the sale was not performed by the purchaser, through no fault of defendant, plaintiff could not recover. Teve- baugh v. Smith Land Co., 163 S. W. 664, Tex. Civ. App. . (10) Instruction authorizing recovery by broker if the failure to carry out the contract of sale was due either to the fault of the owner of the purchaser; held, properly refused, as the owner could not be held liable for the default or misconduct of the pur- chaser. Middle Atlan. Emi. Co. v. Ardan, 78 S. E. 588, 115 Va. 148. (11) Instruction as to broker's duty to sue for the enforcement of a contract, and as to his liability where the purchaser failed to carry out the contract; held, properly refused. Id. (12) In an action for commissions for procuring a purchaser for real estate, the refusal of an instruction assessing damages as requested was proper, where the amount stated was more than the ad damnum. Miller v. Miller, 190 111. App. 363. (13) In broker's action against owners for commission, a re- quested instruction that broker serving both parties could not re- cover, etc., held, not required by evidence that plaintiff referred to prospective tenant as his client, and that he should be paid for negotiating the sale of fixtures between such tenant and the former accupant, where no commission was paid or demanded from such tenant. Symes Inv. Co. v. De Sollar, 165 P. 985, Colo. Sup. . (14) The refusal of an instruction that if, after securing con- tract to make lease of theater, the landowner hired broker's agent, etc., was not error where the commission was payable to the brokers and not to their agent, for such employment could not 840 AMERICAN LAW REAL ESTATE AGENCY. release obligation for payment of commission. Brady v. Rickey & Casey, 202 S. W. 170, Tex. Civ. App. . (15) In an action by a broker for compensation for an ex- change, which failed because of defects in title, a requested in- struction using the word "complete" abstract, which was not in the agreement to furnish, was properly refused, the parties iiav- ing understood that there were one or more incumbrances on each piece to be exchanged, that the phrase "complete" abstract might have instructed the jury that a perfect title was required. Empire Sec. Co. v. Webb, 81 S. 51, Ala. Sup. . (16) Evidence held to show that after the agreement for the broker to stand aside and let the principals complete the negotia- tions begun, the defendant did not consider the agency terminated, but stated that a commission would be paid, so that a peremptory instruction for defendant was properly refused. Kirby Lumber Co. v. West, 220 S. W. 639, Tex. Civ. App. . (17) In an action for broker's commission for procuring a purchaser ready and able to buy, though the owner refused to sell, a requested instruction that the burden was on plaintiff to prove that she sold defendant's farm was erroneous, and properly re- fused. Brown v. Russell, 221 S. W. 791, Mo. App. . (18) In a broker's action for compensation, broker's requested instruction submitting an issue of the case ; held, properly refused as misleading. Morrison v. Jackson, 85 S. 573, Ala. Sup. . (19) Instruction as to broker being the procuring cause; held misleading, and therefore properly refused. Id. (20) In an action by a broker employed to find a purchaser for realty, a requested instruction, that if plaintiff attempted to interest the purchaser, but did not succeed in inducing him "to negotiate with the owner" for its purchase, and thereafter the other agents, by their efforts, effected a sale, the plaintiff would be entitled to the commission, which the jury might have under- stood as implying that plaintiff's failure to introduce the pur- chaser to the owner would defeat a recovery, was properly rejected. Osburn v. Moore, 193 P. 892, Kan. Sup. . CHAPTER XVII. SECTTOI*. 1048-1053c. Findings by the court. 1054-1064d. Verdicts. 1065-1071v nere the agreement for the sale or exchange of real property has been consummated by an actual execution of a written con- tract therefor, in the absence of a stipulation to the contrary, the broker's commissions are earned when the contract is signed by the client, and a defect in the title becomes unimportant and constitutes no defense to the payment of commissions ; but where it is sought to recover commissions for services rendered in attempting to effect a proposed exchange of real property, which was not carried out, no written contract having been signed between the parties to the exchange, it must be shown that the customer produced was the owner of the property offered for exchange, as well as that after the terms of the exchange had been agreed upon the client refused to carry them out. Mutchnick v. Davis, 114 N. Y. S. 997. Defendant having denied that he ever agreed to exchange the property, the rule that objections to title and to completing a contract for the sale or exchange of real property not specified during the negotiations are deemed to have been waived does not apply. Id. PLEADINGS, PRACTICE, ETC. 899 Sec. 1114. Construction of contract between brokers for com- missions. Plaintiffs agreed with defendant to assist him in procuring for sale on commission lands in H. County, and in making sales for defendant plaintiffs were to receive one dollar an acre on the land previously listed by defendant, and one-half of the com- missions on the sale of any lands subsequently listed by either of the parties. Held, that, if either of the plaintiffs rendered any assistance in listing land that was subsequently sold by either plaintiffs or defendant, plaintiffs were entitled to com- pensation at the rate of one dollar per acre, if the land sold had been previously listed by defendant; otherwise, to one-half the commissions received on the sale. Judgment 19 S. D. 525, 104 N. W. 247 reversed on error. Dickinson v. Hahn (S. D. Sup. '09) 119 N. W. 1034. Sec. 1115. Construction of broker's contract for commissions. Defendants, who had platted a subdivision, contracted with plaintiff for the sale of the lots, giving him the exclusive right of sale for six months. Plaintiff was to exercise reasonable dili- gence to sell the property within the time specified. Defendants were to receive the proceeds until they amounted to $2,300, after which the proceeds were to be divided with plaintiff as compen- sation for his services; and if there should be any unsold lots, after defendants had received $2,300, an undivided quarter in- terest was to be conveyed to plaintiff. Held, that the provision requiring the defendants to convey a part of the unsold lots, being only a part of the consideration, was independent of the provision requiring the plaintiff to exercise reasonable diligence to sell all the lots, and upon selling $2,300 worth of lots, he was entitled to the share of the proceeds of subsequent sales within the contract period, and also to a conveyance of a one-fourth interest in the unsold lots. Mitchell v. Bushing (Tex. Civ. App. '09), 118 S. W. 582. Sec. 1116. Contract held to be divisible and not entire. A contract with a broker, after providing the amount of the commissions to be paid on sales as made, recited that the com- 900 AMERICAN" LAW EEAL ESTATE AGENCY. missions were "to become due on one-quarter payment of the selling price of any piece of land sold." Held, That the con- tract was apportionable, and not entire, contemplating that when- ever a payment was made amounting to 25 per cent, or more of the selling price of a tract of land sold, the commission on the sale became due and payable. Tilton v. James L. Gates Land Co. (Wis. Sup. '09), 131 K W. 331. Sec. 1116a. Contract held indivisible. The defendant purchased a tract of land consisting of 1,167 acres, and agreed with plaintiffs, in consideration of their ser- vices in procuring the purchase, and upon other considerations, that plaintiffs should be entitled to one-fourth of the profits aris- ing from a resale of the lands. 831 acres were sold, when plain- tiffs brought an action to recover their share of the profits. Held, that the contract is entire and indivisible, and that plaintiffs can not maintain an action until all the land has been sold, and until it can be ascertained what, if any, profits there are upon the transaction. Crawford v. The 'Surety Inv. 'Co., 139 P. 581, 91 Kan. 748. Sec 1117. Construction defining the word "list" in contracts with brokers for the sale of real estate. A contract by a real estate broker to "list" real estate, is not satisfied by merely taking a description of the real estate by the broker, but the most restricted construction of the word "list" would at least require that some mention of the real estate should appear in some of the broker's pamphlets advertising the property for sale, and, in the absence of such listing, the broker could not recover commissions provided in case of withdrawal of the land by the owner. F. A. Strout Co. v. Gay (Me. Sup. '09), 72 A. 881. Sec. 1118. Construction of contract to pay commissions to broker. In an action for commissions on a contract by which plaintiff was employed to sell lots at private sale or public auction, ' ' col- lect all first moneys," and do certain other things, the question was whether plaintiff was entitled to commissions on defaulting PLEADINGS, PRACTICE, ETC. 901 contracts of sale, and tfie case was submitted on an agreed state- ment reciting the amount of commissions accruing "on defaulted contracts of sale with purchasers at the auction sale * * * and no part of which has been or will be received, ' ' and that plain- tiff claims right to the commissions, "regardless of subsequent defaults of contracting parties." Held, that there was nothing to show that as to sales in which default was made, there was any "first money" to be paid, in the absence of provision for which the auction sale was, under the Civil Code, Sees. 1793, 1798, complete when the auctioneer announced the lots were sold, and entered minutes of the sale in his sale-book, and nothing to show that if there was provision for "first money," it was not collected by plaintiff, the recited failure of receipts being capable of being referred solely to subsequent default payments, and that no presumption as to the existence of such a provision, or as to the failure of plaintiff to collect "first money," if there was a provision therefor, could be made, so as to defeat plaintiff's right of recovery in the absence thereof; the contract not making it a guarantor of payments of the purchase price on sales made by it. Benedict v. Wilson (Cal. App. '09), 103 P. 350. Compare 458. Sec. 1119. Construction of contract. F. & J. were agents for H. for the sale of real estate. H. had sold certain lands to G. F. acting as agent for G.' sold his lots to plaintiff, who paid down $200. The contract provided that it was made subject to the owner's acceptance. An in- cumbrance upon the title was discovered, and a demand for its removal was refused. The contract was then presented to G. for approval, and upon his refusal to approve, a demand was made for the return of the down payment, which was also refused. Plaintiff alleged that H. was the owner of the lot, and that F. in making the sale and receiving the money acted for H. Held, That the fact that F. was the agent of H. for the sale of the lots, is not evidence that he was acting other than as agent for G. in negotiating the sale to plaintiff, since F. had no connection with J., each maintaining separate relations with H. ; that the payment to F. was not a payment to either H. or 902 AMERICAN LAW EEAL ESTATE AGENCY. J., neither of whom had any connection with the sale to plaintiff, and there can be no recovery except from F. or his principal G. Jones v. Jones (Wash. Sup. '09), 104 P. 786 Sec. 1120. Construction of contract. A contract between a land owner and a real estate agent gave the agent the exclusive sale of the land for ten years at such prices as he might deem best, provided that no tract should be sold at less than the value named in the schedule attached. Out of the proceeds of the sales a stipulated amount was to be paid to the owner, and the balance equally divided between the parties to the contract. Held, that the agent had the sole right to fix the selling price, provided it was not less than the schedule value, and that the owner could not arbitrarily refuse to approve a sale for the reason that the price was not satisfactory to him. Young v. Metcalf Land Co. (N. D. Sup. '09), 122 N. W. 1101. Sec. 1121. Construction of contract. A contract for the exchange of property made by plaintiff and a purchaser whom defendants had procured, provided that to bind the contract the purchaser had deposited with defend- ants a deed executed to plaintiffs, and that plaintiffs had paid to defendants $500; if the purchaser failed to perfect his title to the tract conveyed by the deed it should pass in accordance therewith in settlement of commissions and liquidated damages. When defendants learned that the purchaser refused to per- form they asked plaintiffs if they should send such deed for record where the land was situated; but plaintiffs replied that they would think about it, and after defendants had held the deed two days without receiving instructions, they sent it to plaintiffs, Who did not have it recorded for three months. The purchaser, in the meantime, had sold the tract to one who recorded his deed prior to the recording of plaintiffs' deed. Held, That plaintiffs' failure to have the deed recorded in time was through their own fault, and would not prevent defendants from recov- ering their commissions from plaintiffs for procuring a pur- chaser. Lewis v. Mansfield O. & F. Co. (Tex. C. A. '09), 121 S. W. 585. PLEADINGS, PRACTICE, ETC. 903 Sec. 1122. Construction of contract. Defendants agreed to procure a purchaser for plaintiffs' prop- erty, and procured one with whom plaintiffs executed a written contract, which provided that to bind the contract the purchaser had deposited with defendants a warranty deed to a certain tract, part of the property to be exchanged, and that plaintiffs had paid to them $500, and, if the title should prove defective upon examination, the sum deposited and the deed should be returned to the respective parties, but if the title proved good and the purchaser failed to perform, his title to the tract mentioned should pass to the plaintiffs according to the deed deposited with defendants, in settlement of commissions and liquidated dam- ages, and if plaintiffs failed to perform, the $500 should be forfeited in payment of commissions and liquidated damages, and if both parties failed to perform, the purchaser authorized plaintiffs to convey to defendants the tract above mentioned to secure to them the payment of the $500 as commissions, and that such sum should be forfeited to defendants as commissions and liquidated damages. Held, that, even if defendants were bound by the contract between plaintiffs and the purchaser, it did not make their commissions depend upon the consummation of the exchange, but upon the approval of the titles of the properties ; nor did it require defendants to look to the purchaser for their commissions if he breached his contract with plaintiffs, they being bound to pay the commissions in such case, as the pur- chaser's title to the contract mentioned passed to the plaintiffs in accordance with the deed deposited with defendants. Id. Broker's contract of employment construed, and held that where the prospective tenant did not prove complete compliance or execute a lease, as provided therein, without the fault of the principal, no commissions were earned. Leventritt v. Gowell, 132 P. 627, 21 Gal. App. 597. Sec. 1123. Definition in broker's contract of the word "amount." Plaintiff, a broker, wrote defendant asking what he would take for His land, including the stock and a five per cent, com- 904 AMERICAN LAW REAL ESTATE AGENCY. mission. Defendant replied that ''$22,500, your commission $1,112.50; this amount will buy the place." Held, that the word "amount" referred to the total of the two sums mentioned by defendant; the word being defined by Webster as "the sum total of two or more particular sums or quantities, as the amount of 7 and 9 is 16." Smith v. Fears (Tex. C. A. '09), 122 S. W. 433. Sec. 1124. Interpretation of broker's authority to sell a plan- tation. Plaintiff sues defendant for commissions alleged to be due him as selling agent of a certain plantation. Defendant resists, on the ground that the sending forward by himself of a power of attorney to plaintiff was a mere "offer" of an agency, and that before it was accepted he withdrew his lands from the market ; that in the power of attorney sent forward it was agreed and understood that no sale could or should be made until after the prospective buyer had a conference with him and had satis- fied him as to his financial ability, and that he himself should be present at the sale to receive the cash and notes; that when the prospective purchaser in this instance (with whom plaintiff as agent had entered into a written promise of sale of the land) , presented himself at Natchez, he did not put him (defendant) in default for non-execution of the promise : Held, the defenses urged are not well founded. The sending forward of the power of attorney was not the initial step in the matter of agency. It was in fact accepted by plaintiff's offer to take the agency. If an acceptance was necessary it was accepted by letter and by action within the time that the situation of the parties and the nature of the contract showed it was the intention of the de- fendant to allow. The notice of the withdrawal of the land from market was a recognition of the pre-existing agency of the plaintiff. This withdrawal was after the plaintiff and the prospective buyer had started to meet defendant at Natchez, and there was no necessity for putting the defendant in default ; he Jhad himself put an end to the agency, and had placed it out PLEADINGS, PRACTICE, ETC. 905 of his power to carry out the promise of sale ; he had withdrawn from the prospective purchaser an opportunity to show his good faith and ability to purchase. Lucket Land & E. Co. v. Brown, 118 La. 943, 43 S. 628. Sec. 1125. Law requiring contract employing broker to sell land to be in writing not retroactive. Laws 1905, p. 110, c. 58, requiring a contract for payment of commissions to a broker for the sale of land to be in writing, is not retroactive. Dean v. Williams (Wash. Sup. '10), 106 P. 130. Sec. 1126. Construction of term "title satisfactory to pur- chaser. ' ' Where a contract for the sale of land calls for a title satis- factory to the purchaser, he has no arbitrary right to refuse the title offered, but it means that the vendor must furnish a good, marketable title. Id. Sec. 1127. Construction of broker's contract and defining the word "timber." Where a broker's contract employed him to purchase timber options for a percentage of the net profits from the sale of the timber, and certain land was purchased in order to obtain the timber thereon, the word "timber" in the contract of employ- ment could not be extended to include the land, so as to entitle the broker to a percentage of the net profits of the sale of the land, as well as the timber. Wilson v. James (Wash. Sup. '10), 106 P. 618. Sec. 1128. When law of place of performance governs in in- terpretation of contract. The place where a contract is made governs, as a general rule, the performance of its terms; but when it is the express intention of the parties that the contract is to be performed at a different place, and under a different jurisdiction from the place where it is made, the law of the place of performance governs. Benedict v. Dakin (111. Sup. '09) 90 N. E. 712 AMERICAN LAW REAL ESTATE AGENCY. The validity of form and effect of a real estate broker's em- ployment contract, wKicH is made and to be performed within tUe State of Georgia, are controlled by the law of Georgia. Hattori v. W. D. "Morton & 'Co., 79 S. E. 371, 13 Ga. App. 469. Sec. 1129. Law of place of performance of contract governs as to compensation. "Where a contract employing a broker to procure a purchaser of real estate in Louisiana did not fix the compensation, but it appeared that the contract was made in Louisiana, without any- thing to indicate that the parties contemplated a performance elsewhere, and the sale was consummated there, the law of Lou- isiana governs as to the amount of the compensation, which must be determined by the customary commissions paid for like serv- ices in that State. Benedict v. Dakin (111. Sup. '09), 90 N. E. 712. Sec. 1129a. Contract of agency invalid in Nebraska, invalid in Iowa. Oral confracf for commission for sale of real estate, made in "Nebraska, and invalid there, because not in writing, as required b~y Cobleys* Ann. Stat. 1911; field, invalid in Iowa. "Brown < Prammer v. Wm. Perason Co., 150 N. W. 1051, 161 Iowa, 59. Sec. 1130. Definition of term "pecuniarily able" in broker's contract of employment. The term "pecuniarily able," used with reference to the financial condition of the proposed purchaser procured by an agent of the vendor, does not mean that such purchaser must necessarily have all the money in his pocketbook or to his credit at the bank, but that he is able to command the necessary money to close the deal, on reasonable notice or within the time limited by the vendor, if a time be limited. McCabe v. Jones (Wis. Sup. '10), 124 N. W. 486. Sec. 1131. When interpretation of contract is for the court, when a question of fact for the jury. The interpretation of writings is for the court, where they are are unambiguous, or where they are ambiguous in their terms and PLEADINGS, PRACTICE, ETC. 907 the ambiguity can be resolved by reference to other parts of the writing or uncontroverted circumstances; but where the terms of the writing are ambiguous, and the intention of the parties cannot be ascertained without resorting to extrinsic facts which are controverted or unconceded, intention is a question of fact for the jury. Big Four R. E. Co. v. Clark (Mo App. '09 ), 123 S. W. 95. See sec. 926. Sec. 1132. Construction of contracts and other judicial deter- minations. (1) An agreement by a landowner and an agent authorized sale "if any trade be made within twelve months with parties brought to" the owner by the agent to protect the agent in his commission, contemplated any trade resulting from negotiations by the owner or any participated in by the agent. Shannon v. Lee, 60 S. 99, 178 Ala. 463. (2) Broker's contract of employment; held, not revoked, but only construed together to contemplate that if the land was sold for $2,000 or more, the broker should receive a specified percent- age, and if the price was more than $1,200, but did not exceed $2,000, he should have all in excess of $1,200. Ingram v. Cole- man, 160 S. W. 886, 110 Ark. 632. (3) An agreement to pay $1,500 as commission out of the first cash payment of $15,000; held, not to obligate the owner to pay a commission where only $1,000 was paid by the purchaser. BecTcwith-Anderson Land Co. v. Allison, 147 P. 482, 26 Cal. App. 473. (4) A contract for a commission for a sale of land; held, not to entitle the broker to the additional compensation provided to procure assistance of another in making the sale, where he sim- ply had another agent to point out the location of the tile in the ground. Harvey v. Main, 149 1ST. W. 236, 167 Iowa, 258. (5) Under a contract making defendant agent to sell plaintiff's land, defendant to have, as compensation, half the selling price received in excess of $175 per acre, to be retained from the collec- tions made by defendant after a certain amount was paid plain- tiff, defendant is entitled to interest received on deferred pay- 908 AMERICAN LAW REAL ESTATE AGENCY. merits representing defendant's share. Wright v. Percivdl-Porter Co., 156 N. W. 698, 174 Iowa, 522. (6) Where owners wrote a letter to a real estate agent listing land at $11.50 per acre net to owners, and the letter came into the hands of plaintiff, another agent, who procured a purchaser, to whom the owners sold the land at $12.50 per acre, the owners could not, just before the contract was signed, raise the net price to $12.50, as against plaintiff. Culbertson v. Sheridan, 144 P. 268, 93 Kan. 268. (7) Where a broker's contract for the sale of real estate pro- vides for a net amount to the owner, his compensation is such sum as the purchaser is willing to pay in excess of such net price. Futrell v. Reeves, 176 S. W. 1151, 165 Ky. 282. (8) Where one employed in selling land employs another, and agrees to pay him a fixed commission, and the one so employed finds a purchaser, it is immaterial to the question of the right to commission whether it absorbs the profits of his employer. Daniel v. Sheridan, 59 S. 24, 131 La. 88. (9) Where the owner of premises agreed to pay a broker, as a commission for procuring a tenant, "all you get above $2,000 per year," and the broker leased the premises for five years at an an- nual rental of $2,200, he was entitled to the excess over $2,000 each year during the life of the lease, and not merely for one year. Goldstein v. D'Arcy, 87 N. E. 584, 201 Mass. 312. (10) The owner of real estate employed a firm of brokers to sell the same, agreeing to pay the brokers 2%% commission. A prospective purchaser procured by them offered less than the owner's price, and the brokers, in a letter to the owner, agreed to take a less commission than 2*^%, and shortly after the receipt of this letter the purchaser dropped all negotiations, which he re- newed about six months later. After the renewal of the negotia- tions the owner again asked the brokers what their commission, would be, and they agreed to take the same amount as before. Held, that as they led the owner to believe that their commission would be a less amount than 2*4%, and he sold the land under that belief, so agreement was a binding contract supported by a valid consideration. La Chappelle v. Bicker, 135 S. W. 957, 154 Mo. App. 500. PLEADINGS, PRACTICE, ETC. 909 (11) Letters constituting a broker's employment for the sale of lands construed, under Kev. Stat. 1913, Sec. 7909, and held* that the broker was entitled to retain one dollar per acre as com- mission on a sale of land at $115 per acre, though the principal's first letter stipulated that the sale should be for $115 net per acre. Pottratz v. Piper, 145 N. W. 265, 95 Neb. 145. (12) If plaintiff, in consideration of $120, agreed to procure a loan for defendant, he is only entitled to that compensation upon procuring the loan, and not to the payment of the disburse- ments incurred. Central Mtge. Co. v. Partello, 132 N. Y. Sup. 432. (13) A contract for the employment of a broker to sell real estate, which stipulates that he shall receive for commission 30% of the price as fixed by the owner, that he shall receive such com- mission whether the tracts are actually sold by him or by any other, and that, where tracts are sold on the instalment plan, out of each instalment the broker shall receive 60% until the total amount of his commissions are paid, gives to the broker a com- mission on all sales of 30%, where the full price is paid, either in cash or by instalments, and on all sales where at least 50% of the price is paid, and he is entitled to 60% of the amount of instalment payments not equaling 50% of the price, though pur- chasers making contracts with the owner are unable to pay the price. Van Varick v. Suburban Inv. Co., 135 N". Y. Sup. 299, 76 Misc. Eep. 573. (14) If defendant agreed to pay plaintiff all money over $9,000 which was received for his land from a purchaser procured by plaintiff, and to take suitable city property in payment thereof, the actual value of the city property received in exchange, and not the price placed thereon by defendant and the purchaser, should be taken in determining the amount of plaintiff's compensation. Grace v. McDowell, 120 P. 413, 60 Or. 577. (15) Where defendant entered into written agreement to pay, plaintiffs a commission of $750, to be allowed for faithfully enter- ing into a contract with B. to act as sales agent of a named tract of land, also as a commission in helping to make the deal with B., only one commission could be collected, and plaintiffs could not recover the stipulated sum, together with a percentage com- 910 AMERICAN LAW REAL ESTATE AGENCY. mission for effecting the sale. Thompson v. Sargent, 134 P. 7, 66 Or. 384. (16) Where a loan broker, holding an agreement with the owner of a building option to furnish the necessary money, pro- cures a portion of the money from a trust company, which insured the completion of the building and the mortgages thereon, and the broker agrees that the trust company shall retain the current interest on the mortgages only; held, not entitled to defeat the trust company's right to retain the interest. Whelan v. Land Title & Trust Co., 60 Pa. Super. Ct. 9. (17) Where land was listed with a real estate broker to be sold at $19 per acre, there being no agreement as to his commis- sion, and after various negotiations the owner agreed to accept a lesser price and to pay the broker a stated commission, a contract of sale at a greater price per acre, the method of payment being the same, was a sufficient compliance with the agreement to en- title the broker to his stipulated commission, but no more. Luce v. Ash, 132 K W. 708, 28 S. D. 109. (18) A contract by which a county listed land with a broker, to be sold at $4 per acre net, to the county, does not necessarily mean that the broker is to receive all the excess above $4 per acre, nor that his commission is to come out of the proceeds of the sale, but to sustain the validity of the contract will be construed as meaning that the broker is to obtain a purchaser at the best price obtainable, and to receive thereafter a reasonable compen- sation, the price in any event to be not less than $4 per acre to the county, and that the reasonable compensation is to be paid by the county in some lawful manner; that is, out of current or general funds. Sandifer v. Foard County, 134 S. W. 823, judg. aff., 151 S. W. 523, 105 Tex. 420. (19) In a action by a broker employed to procure an exchange of land for a stock of merchandise, or all that the owner of the merchandise received in exchange therefor, a tract of land which was worth a specified sum. The owner of the merchandise testi- fied that he had to have money for an assumed indebtedness on the land obtained in exchange. Held, that as the broker's com- mission was based upon a commission on the amount realized by the trade, the value of the land, after deducting the money paid therefor and the indebtedness assumed thereon, must be deducted PLEADINGS, PBACTICE, ETC. 911 as the basis for a computation. Davidson v. Willis, 96 S. W. 634, Tex. Civ. App. . (20) Where a contract employing plaintiffs to sell defendant's property provided that it must be sold at a price to net the owners not less than $125 per acre, and that a commission must be added to pay that amount, the contract did not authorize the brokers to retain as their commissions all of the price above $125 per acre obtained, but only entitled them to a reasonable compen- sation. Allen v. J. A. Clapton Realty Co., 135 S. W. 242, Tex. Civ. App. . (21) Where an owner employed a broker to assist him in ef- fecting an exchange of his land, and promises him a commission of a certain per cent., and no express contract is made as to which contract was to be the basis for fixing the commission, the value of the tract taken in exchange is the basis. Leake v. Scaief, 140 S. W. 814, Tex. Civ. App. . (22) Where an owner of land agreed to pay a broker a fixed percentage for procuring a purchaser, his act in selling the land to a prospective purchaser at a lesser price will not entitle the broker to recover more than the price fixed by contract. Martin v. Jeffries, 153 S. W. 658, Tex. Civ. App. . (23) A defendant employed to recover a sale of lands of plain- tiff for one-half of each separate tract recovered, or one-half of the proceeds of any single tract sold, may not appropriate the whole of the proceeds of the tract sold, merely because his interest in other tracts not sold is as great as the proceeds. Thomason v. Rogers, 155 S. W. 1040, Tex. Civ. App. . (24) Where a landowner and a broker made a supplemental contract to fix their rights, the broker can not recover on both contracts, but only on one. Gossett v. Vaughan, 173 S. W. 933, Tex. Civ. App. . (25) Broker given option with right to sell; held, not entitled to recover the amount paid for the option, in addition to the commission on the sale, though at the purchase this was to have applied on the purchase price. Burt v. Stringfellow, 143 P. 234, 45 Utah, 207. (26) Where a contract between the owner of land and a build- ing company, by which the owner agreed to convey land to the company to enable it to secure a mortgage for building purposes, 912 AMERICAN LAW EEAL ESTATE AGENCY. a sale of land to third persons did not provide for the payment of commissions upon selling the land, no commission could be re- covered. H. E. Orr. Co. v. Interldken Land Co., 133 P. 599, 74 Wash. 340. (27) Brokers fraudulently took title to land in their own name; held, to have no right to a sum of money received, nor to commissions, nor to money paid to stock same by a sale of a por- tion of the property to a bona fide purchaser. Dean v. Roberts, 62 S. 44, 182 Ala. 221. (28) Under agreement between brokers, one was to handle a matter which the other was instrumental in procuring, for half the commission, damages could not have been recovered for a re- fusal to make any attempt to negotiate a lease ; held, not to defeat a recovery where a lease had been negotiated. Collins v. Snow, 106 N. E. 148, 218 Mass. 542. (29) One who had no contract with the owner, and merely ar- ranged to divide the commission with another broker, also autho- rized to sell, was not entitled to any commission from the owner. McCormiclc v. Obanion, 153 S. W. 267, 168 Mo. App. 606. (30) Where broker, employed by owner, arranged with other brokers for share of commissions; held, that to entitle him to such share it was not necessary that the lease should be procured through his efforts. Rraus v. Cammann, 154 N. Y. Sup. 125. (31) A real estate broker, for bringing purchaser to his prin- cipal, is entitled to his commission though, before the trade is completed, he becomes connected with a corporation, of which he notifies his principal, who thereafter accepted the corporation's services in the matter. Northern Immi. Society v. Alger, 147 N. W. 100, 27 N. D. 467. (32) The owner of real property wrote to a number of bro- kers asking them to sell his property. A broker who received one of these letters, and who, without having the sale of the prop- erty or listing it on his books, found a purchaser and submitted the purchaser's offer of a sum to net the owner the sum fixed by him, which left a surplus as the broker's commission and cost of abstract to be furnished to the purchaser's attorney. Held, that though the broker may not have understood his relations to the owner, he was, as a matter of law, acting as the agent of the owner, and hence, such purchaser was not liable to the agent for PLEADINGS, PRACTICE, ETC. 913 commissions on the acceptance of his offer. Minto v. Moore, 55 S. 542, 1 Ala. App. 556. (33) A contract creating an agency to sell lands on commis- sion construed with respect to the right of the agent to receive commissions from deferred payments as made. Fountain Land & Iron Co. v. Pearsons, 201 F. 324, 119 C. C. A. 562. (34) A contract to convey bound a purchaser to pay brokers "$300, and seller agrees to pay brokers $100, when deal is com- pleted." Held, that the $300, as well as the $100, was payable only on completion of the transaction. Stanton v. Carnahan, 115 P. 330, 15 Gal. App. 527. (35) Where a contract with a broker for the sale of land pro- vided that commissions should be due and payable "on the settle- ment of all sales, for instance, after the purchaser signs the propo- sition, and pays the earnest money, with a contract to settle the balance of cash required on the first payment, then the commis- sion will be due and payable on that settlement." The term "earnest money" was used synonymously with first payment, and "settlement of all sales" made the full payment of a part of the price which was to be paid in money, whether at the time of the signing of the contract to be subsequently executed or in part then, and the remainder when it was consummated. Kurtz v. Payne Inv. Co., 135 N. W. 1075, 156 Iowa, 376, pet. for re. over, but opin. mod., 137 N". W. 460. (36) Under a contract fixing the compensation of the agent to procure a purchaser of land, fixing the time for payment as the time of the "consummation" of the sale ; "consummation" was the passing of the title, and the compensation was contingent upon that. Morse v. Curley, 85 A. 196, 83 N. J. Law, 416. (37) Where a contract with a broker provided that all com- missions should be taken out of the sums collected, there can be no recovery for sales made upon which the purchase price had not yet been paid. Gossett v. Vaughn, 173 S. W. 733, Tex. Civ. App. . (38) Where a real estate broker, after earning his entire com- mission, voluntarily agreed to accept payment in instalments as the purchase price was paid, provided such instalments were paid promptly, and the principal failed to make such payments aud denied liability. Held, that the broker was absolved from his 914 AMERICAN LAW EEAL ESTATE AGENCY. agreement to defer the payments, and could sue him for the en- tire commission. McGehee Lumber Co. v. Tomlinson, 63 S. 919, 66 Fla. 536. (39) When an agreement provided that the brokers were to be entitled to an additional sum if the price exceeded that asked by the seller, they would be entitled to such excess when the same was paid, but an action for the excess could not be maintained until the money was paid. Miller v. Miller, 190 111. App. 363. (40) A contract between a broker and a purchaser to exchange the principal's flour mill and other real estate for three houses, and a contract between the purchaser and the principal to ex- change the mill for one of the houses; held, not to be so differ- ent as to require the broker to recover on a quantum meruit. Waddell v. Noser, 188 111. App. 302. (41) Equity is without jurisdiction of an action by a real es- tate agent with whom land was listed for sale against another agent, for an accounting for profits received by the latter, who procured a purchaser under an agreement to divide the profits with the complainant, since the remedy at law was adequate. Wilson v. McVay, 193 111. App. 417. (42) A broker who had no written contract of employment to procure a purchaser for real estate, as required by Burns's Ann. Stat. 1908, Sec. 7463, can not recover for his expenditure of time and money in procuring a purchaser, in an action in which his complaint sounds in tort, for fraud and deceit. Fullenwider v. Goben, 95 N. E. 1010, 176 Ind. 312. (43) A broker's action for compensation for effecting a sale of land is transitory and in personam only. Brown & Brammer v. Wm. Pearson Co., 150 N. W. 1057, 169 Iowa, 50. (43a) Where a partnership agreed to pay plaintiff a share of his commissions for a sale of realty owned by some of the part- ners, who fraudulently refused to collect its commissions, or where the partners fraudulently prevented the collection, the broker could have his rights adjusted in a court of equity so as to pre- vent the fraud from being perpetrated upon him. Thompson v. Price, 157 S. W. 288, Tex. Civ. App. . (44) Where there was an agreement between plaintiff and de- fendant for the payment of a fixed sum, and the right to require payment accrued, it could be recovered in an action on an ac- PLEADINGS, PBACTICE, ETC. 915 count annexed. Hutchinson v. Plant, 105 N. E. 1017, 218 Mass. 148. (45) A broker was given an exclusive agency for 60 days to procure a purchaser of real estate for a specified sum, for the usual commission. The owner, seven days before the expiration of the sixty days, sold the property for a less price to one not discovered by the broker, who was not negotiating with any one, who would have bought, either at the stipulated price or at the price obtained by the owner. Held, that the broker could not re- cover the contract price, under the rule that a party wrongfully discharged from his employment may consider the contract as performed, and recover the contract price, as the absolute measure of damages, but he must treat the contract as rescinded, and, on a quantum meruit, recover the value of his services, and the amount of his expenses, or sue for a breach of the contract and recover the actual damages sustained. Norman v. Vandenburg, 138 S. W. 47, 157 Mo. App. 488. (46) If a broker is entitled to recover any compensation on a sale made by his principal on terms different from those set forth in his contract, he must sue upon a quantum meruit and not on the contract. Clark, v. Asbury, 134 S. W. 286, Tex. Civ. App. . (47) Petition in a broker's action for commissions; held, not objectionable as not stating a cause of action, because of allega- tion of an agreement to sell, and the other allegation of bringing about a sale, there being no difference between a sale and bring- ing about a sale. Smith v. Lyons Salt Co., 177 S. W. 1057, Mo. App. . (48) Where, in a suit for broker's services, plaintiff's verified statement alleged that defendants were entitled to a credit of $547.50, while incorrect, was not specifically denied, the fact that plaintiff discovered a mistake on the trial, and admitted that he owed defendants on an extraneous account $880.67 more, did not give defendants an additional right to extend the inquiry to cover such question. Dempster v. Cochran, 174 F. 587, 98 C. C. A. 433. (49) In an action for broker's commissions, exclusively on the theory that plaintiff procured a sale of part of the contract that he was authorized to sell, and did not allege he was instrumental 916 AMERICAN LAW HEAL ESTATE AGENCY. in the subsequent sale, he was not entitled to prove by the pur- chaser how much more of the entire tract he had purchased, in addition to the original amount purchased. Cone v. Keil, 124 P. 548, 18 Cal. App. 675. (50) In a broker's action for compensation for selling land, where the only cause of action shown by the evidence was one for the recovery of certain property which they agreed to give plain- tiff for making the sale, or the recovery of the value thereof and the petition showed that the consideration for the transfer was plaintiff's services. The fact that the further allegation that the property was to be conveyed by defendants, and accepted by plain- tiff in lieu of an agreed commission of $3,000, was shown to be untrue, did not defeat plaintiffs right to recover the property, or have a decree for specific performance. Cheek v. Nicholson, 133 S. W. 707, Tex. Civ. App. . (51) For the purpose of calculating an agent's commission on an exchange of property, the property taken by the principal must be assumed to be worth the value placed upon it by the par- ties to the trade at the time the contract was consummated. Waddell v. Noser, 188 111. App. 302. (52) A contract for employment of plaintiff to procure a pur- chaser; held, to require defendant, on plaintiff's procuring a pur- chaser, to organize a corporation, and to put in its treasury the par value of the stock which plaintiff was to receive, should be fully paid when issued, within Kev. Stat. 1909, Sec. 2981. Moore v. King, 178 S. W. 124, Mo. Sup. . (53) In a real estate broker's action for a commission, evi- dence held insufficient to show the seller's lack of good faith in the transaction, wherein her contract to sell to the buyer intro- duced to her by plaintiff fell through, and she later consummated a sale through another agent to the same buyer. Bruce v. Drake, 70 S. 273, 195 Ala. 236. (54) In an action for compensation under an alleged agree- ment by which plaintiffs, for procuring an option on land for erecting a building and leasing the building, were to receive a certain percentage of the net annual rent, evidence held to show that the parties used the term "net rental" to mean the gross rental, less the expense for maintaining, in the absence of which PLEADINGS, PRACTICE, ETC. 917 the gross and net rental were the same. Kinsey v. Dickinson, 140 N. W. 983, 175 Mich. 1. (55) Evidence held to show that the owner did not list the land with the broker in the usual way, but that he so understood that, unless the broker actually made a sale, he should be paid nothing. Carr v. Manistee Land & Timber Co., 146 N. W. 202, 179 Mich. 338. (56) Where brokers were entitled to commissions in a corpora- tion purchase of certain Indian allotments through another source within a year after acquiring deeds to certain other allotments, the fact that the corporation did so was merely evidence of de- fendant's good faith, and was not indicative that the broker's con- tract had been abrogated. Lord v. Wapate Irr. Co., 142 P. 1172, 81 Wash. 561, judg. aff. on re., 152 P. 329, 81 Wash. 696. (57) Where introduction of advertisement, or disclosure of purchaser is relied upon to entitle broker to a commission, the evidence must show that it was the foundation of the negotia- tions resulting in the sale, though conducted and concluded by the owner. Dillard v. Field, 153 S. W. 532, 168 Mo. App. 206. (58) The fact that plaintiff, who acted as agent for defendant in a sale of her property, renders a statement for the amount due for commission and services on the day the deed is delivered, is not conclusive evidence that plaintiff is not entitled to addi- tional compensation for extra services. Wood v. Foster, 181 HI. App. 409. (59) Where a broker's right to commission was based on his agreement with a third person, who had been employed by the owner, and the third person had assigned to the broker all inter- est in his claim for commission, the broker could recover the en- tire commission. Anderson v. Crow, 151 S. W. 1080, Tex. Civ. App. . (60) Where a contract employing a broker to procure a pur- chaser for real estate did not fix any time for the performance of the contract, and the owner did not revoke the agency, nor in- quire of the broker as to what was being done in procuring a purchaser, the court could not say, as a matter of law, that a period of five months since the owner had heard from the broker was an unreasonable time, so as to terminate the contract, and 918 AMERICAN LAW EEAL ESTATE AGENCY. authorize the owner to make a sale without liability to the bro- ker for a commission. Schlagle v. Russell, 80 A. 164, 114 Md. 418. (61) In an action for a share of broker's commission, evidence held insufficient to present the question for the jury as to whether employment under which sale was effected was a continuation of prior negotiations. Lucas v. Crenshaw. 82 A. 446 116 Md. 445. (62) Where owners, in December, signed a contract giving brokers an exclusive agency for the sale of their property, and provided that the owner should pay a commission on any sale made by them, but fixed no time for the termination of the con- tract, it could not be said, as a matter of law, that a reasonable time for a sale by the brokers had not expired by the latter part of September. George J. Wanstrath R. E. Co. v. Wenz, 170 S. W. 345, 185 Mo. App. 713. (63) Where a broker was only employed to find a purchaser, and had no power to agree on terms, and he submitted to the purchaser a proposition different from that which his principal had authorized, the purchaser's acceptance did not constitute a contract between him and the broker's principal. Nelson v. West- ern Union Tel. Co., 143 K W. 833, 162 Iowa, 50. (64) To "bargain," as used in written authority to broker to sell in the owner's name, implies negotiations over the terms of the agreement. Golden v. Clondel, 118 P. 77, 85 Kan. 465. (65) "Sell in the principal's name," as used in a writing giv- ing authority to brokers, implies the conclusion, in the principal's name, of the agreement negotiated by the brokers. Id. (66) A writing whereby owner authorized brokers to bargain and sell in his name the property described, conferred power to negotiate for a sale and to conclude a contract, in the owner's name, binding him to make a conveyance. Id. (67) A letter to a real estate agent saying, "If you care to try your hand, go ahead ; if you can sell let me know, and I will send power of attorney," is not authority to enter into a written con- tract of sale, and to bind the owner irrevocably. Dey v. Nelken, 59 S. 104, 131 La. 154. (68) The obligation of an owner to convey real estate is com- plete on the making of a contract with a duly authorized agent, PLEADINGS, PRACTICE, ETC. 919 on the terms and within the time authorized. Brady v. Fontenot 61 S. 838, 132 La. 826. (69) Under a real estate broker's contract giving him power to contract to convey, he was authorized to insert in the contract of sale provision for forfeiture on breach of contract by either party. Stevens v. Odlin, 84 A. 899, 100 Me. 417. (70) A contract to convey, executed by a real estate broker under authority from the vendor, is as valid as if the contract was signed by the vendor himself. Id. (71) Where a broker had been employed to obtain a customer for a farm on certain terms, and on informing defendant that such customer had been found, was directed, "it is all right, go ahead," such statement did not confer on the broker authority to execute a binding contract of sale. Record v. Littlefield, 106 N". E. 142, 218 Mass. 483. (72) It is within the authority of an ordinary real estate agent to show a prospective purchaser the property for sale, and to state its location, and to make representations as to its attractive fea- tures, and an agent of a realty company was authorized to point out to a purchaser the land sold. Smith v. Mich. Realty & Con. Co., 141 N. W. 635, 175 Mich. 600. (73) The owner of land authorized a real estate agent to sell property within a certain period, on certain terms, and agreed to convey. Held, that a contract entered into by the agent was en- forceable against the owner of the land. Peterson v. O'Connor, 119 N. W. 243, 106 Minn. 470, 130 Am. St. Rep. 618. (74) An agent with authority to sell has no implied authority to assign to one with whom he contracts for the sale, the rent ac- cruing during the negotiations or from the date of the contract. John Gund Brewing Co. v. Tourtelotte, 121 N. W. 417, 108 Minn. 71, 29 L. R. A. (N. S.) 210. (75) Broker having power to negotiate a sale of land for cash may contract for part payment down, and the rest on delivery of the deed. Barberet v. Myers, 144 S. W. 824, 240 Mo. 58. (76) Vendors of land are not entitled to be relieved of a con- tract of sale made by a broker because they, by mistake, under- stood that the agency was to expire at a given time. Id. (77) A broker having land of another for sale or trade, under an agreement to retain all he could obtain over a fixed price as 920 AMEBICAN LAW EBAL ESTATE AGENCY. his commission, may, in the absence of actionable fraud or deceit, or objection by his principals, fix the price at any sum at which he may be able to lawfully sell, or otherwise dispose of the land in trade. Lotson v. Buck, 130 N. W. 970, 89 Neb. 28. (78) Where a purchaser of property in the hands of a broker for sale causes a part of the consideration to be conveyed to the broker or to another designated by him, which is retained as the broker's commission, the purchaser, in the absence of actionable deceit, or confidential relations, may not recover the property so retained. Id. (79) A real estate broker can not bind the vendor by an un- authorized delivery of a contract of sale. Smith v. Severn, 139 N. W. 858, 93 Neb. 148. (80) The use of the word "sell," "sale" or "to sell," in a real estate broker's employment contract, does not necessarily author- ize him to execute a contract of sale for and in his principal's name. Whitehouse v. Gerdis, 145 N. W. 338, 95 Neb. 228. (81) A contract to sell land, executed by a broker in the name of his principal, is binding on the principal, where the broker is authorized to execute it. Id. (82) Where the owner advertises a farm for sale, stating that interested parties may address him, or call on a certain broker for terms, and writes the broker that he will sell for a certain price, on certain terms, and pay a certain commission, and says, "he could sell, giving abstract," the broker is authorized to make a written contract of sale. Id. (83) In the absence of a special contract or conferred author- ity, a broker employed to sell or to assist in selling the property has only a power to find a purchaser, and bring the seller and purchaser together. Stine v. U. S. Guarantee & Indemnity Co., 144 N. Y. Sup. 849, 159 App. Div. 679, judg. aff., 112 N. E. 1077, 217 N. Y. 656. (84) A broker employed to sell a junior mortgage interest at a specified price has no authority to make a contract containing conditions, on the performance of which the purchaser agrees to take the interest. Id. (85) A mere listing of real estate with a broker does not author- ize him to bind the owner by an executory contract of sale. Levy v. Yarbrough, 136 P. 1120, 41 Okl. 16. PLEADINGS, PRACTICE, ETC. 921 (86) Before a real estate broker can bind the owner by an executory contract of sale, he must have specific authority there- for from the owner. Id. (87) A landowner who makes a sale through a duly authorized broker is bound by the broker's statement as to the quantity of land. Coughron v. Stinespring, 170 S. W. 152, 132 Tenn. 636, L. E. A. 1916 C, 103. (88) A contract by a landowner's brokers to sell the land at less than the price authorized, and exceeding their authority, in- cluding a water-right and guaranteeing the number and varieties of fruit trees, does not bind the owner. Smith v. Craig, 112 P. 513, 61 Wash. 528. (89) Purchasers of realty upon abrogation of the contract for defects in title; held, entitled to recover $400 from the broker and $100 from the owner, for such broker had acted as agent for them, and $500, the entire deposit, if he had acted for himself. Depavo v. Rizzo, 149 P. 793, 27 Cal. App. 200; Id., 149 P. 795, 27 Cal. App. 793. (90) An action does not lie by one who has contracted with a broker to purchase land owned by heirs, to recover a deposit made on account of purchase price, on the g r ound that there is a possibility that there may be claims against the estate which would be a lien against the property, where the defendant offers to procure a bond and pay any such claims, offering a deed con- veying a good title to the property, free from incumbrances, and the plaintiff failed to comply or tender compliance with his part of the contract. Wynkoop v. Shoemaker, 37 App. D. C. 258. (91) Where plaintiff applied to a loan broker for a loan, and the broker's principal sent the loan applied for to the broker, to be delivered to plaintiff when his title to the land, on which trust deeds were offered as security, was perfected, and the broker was made responsible, and violated the instruction of his principal to the extent of advances to plaintiff, and for money to satisfy an outstanding mortgage, it being agreed that he should hold balance until the defects in the title were removed, and the broker pro- ceeded to remove the defects, and after part of them had been re- moved made another payment to plaintiff, plaintiff can not, while the other defects are not removed, recover the balance of the loan 922 AMERICAN LAW REAL ESTATE AGENCY. from the broker. Peters v. Carroll, 134 S, W. 49, 153 Mo. App. 375. (92) Where a loan broker, under an agreement with plaintiff, retains part of the loan applied for till defects in the title to land offered as security by plaintiff should be removed, the fact that the party making the loan demanded that plaintiff pay interest on the full amount of the loan does not entitle plaintiff to recover the balance retained by the broker. Id. (93) An agent of the lender held entitled to recover from the applicant for the loan the cost of obtaining an abstract. Carroll v. Lemmons, 147 S. W. 1101, 164 Mo. App. 655. (94) A broker procuring a loan was not the agent of the bor- rower to receive the money, and the lender's payment of the broker's draft therefor was a failure of ordinary care. Robinson v. Citizens' Trust Co., 172 S. W. 1160, 187 Mo. App. 51. (95) In determining whether a party to an exchange of real estate brought about by one who acted as agent for both par- ties is precluded from voiding contract on the ground that she did not know of the double agency, her habits of life, her age, and her knowledge of the English language should be considered. Neuman v. Friedman, 136 S. W. 251, 156 Mo. App. 142. (96) A tenant in common who, with the others, has made a contract to sell the common property, is not liable to a purchaser for inducing the others in consummating the contract. Daly v. Cornwell, 54 N. Y. Sup. 107, 34 App. Div. 27. (97) A person who has contracted to pay commissions on a sale of real estate can not object to such payment, on the ground that the purchaser offered was an unincorporated society, inas- much as such an association may lawfully hold title to real prop- erty. Barrett v. King, 64 Pa. Super. Ct. 641. (98) Where broker was to sell land at $22,000, on a commis- sion of 5%, and a contract was entered into at $21,500, which was signed and agreed to by the owner, with proviso that broker should get an even $1,000 "when the sale is consummated/' the latter words must have referred to some different event, and not the time of signing the contract of sale. Alison v. Chapman, 173 P. 389, Cal. App. . (99) In partition, a contract to pay commission to a broker PLEADINGS PBACTICE, ETC. , 923 for finding a purchaser is a question of law for the court. Buxton v. Colver, 171 P. 1158, 102 Kan. 871. (100) Pub. Laws 1913, S238, making void every agreement, promise, or contract to pay a commission, unless in writing, does not prevent proof of agency by the rescinding vendee, who alleged fraud of the agent of the vendor, such statute applying only as between the principal and the agent. Cox v. Holkeboer, 160 N. W. 1004, 200 Mich. 86. (101) When the language of a brokerage contract is ambiguous, the construction which the parties have themselves put upon it is very controlling in determining their true intention. Miles v. Lampe, 168 N. W. 640, Neb. Sup. . (102) Whether a broker is authorized by his contract to exe- cute a binding contract of sale, in his principal's name, depends upon the intention of the parties, which must be determined from the whole contract in the light of the circumstances. Id. (103) In an action for commission, where words used in bro- ker's contract as to net price to owner have a well-defined legal meaning, parties must be presumed to have used them with such meaning, in the absence of any showing that they intended them to have a different meaning. Burton v. Wilson, 205 S. W. 655, Ark. Sup. . (104) In statute of frauds, Sec. 10, as amended by P. L. 1911, p. 703, relating to commissions of real estate brokers for effecting exchange or sale of lands, the word "exchange" has the same meaning as at common law, and means, a mutual grant of equal interests, the one in consideration of the other. Broker held en- titled to recover commissions. Hdber v. Goldberg, 105 A. 874, N. J. Ct. of Err. and App. . (105) Although agreement between principal and broker for sale of realty does not provide the rate of commission, or the time as required by Sec. 10 of statute of frauds, as amended by P. L. 1911, p. 703, the fixing the same word as a commission is within the true intent of act, a broker is entitled to recover it. Id. (106) Supreme Court is not prepared to hold that Civ. Code, Sec. 1624, subd. 6, requiring agreements authorizing or employing an agent or broker to purchase or sell realty for compensation or commission to be in writing, is not applicable in case of a simple 924 AMERICAN LAW REAL ESTATE AGENCY. contract between such agent or broker and a proposed purchaser to obtain option for purchase of realty. Howard v. D. W. Hobson Co., 176 P. 715, Cal. Sup. . (107) Where broker, in reply to owner's letter inquiring if broker would accept a specified amount as compensation for ser- vices, declined to accept such amount, and stated that a much greater amount would be right, and further correspondence did not refer to broker's compensation, the minds of the parties did not meet, and there was no enforceable contract, under Burns's Ann. Stat. 1914, Sec. 7463, requiring broker's contracts to pro- cure a purchaser of real estate, in consideration of certain com- missions, to be in writing. Peters v. Martin, 122 N". E. 16, Ind. App. . (108) A memorandum held insufficient under L. 0. L., Sec. 808, on which to base an action for commissions earned by plain- tiff as a broker in a sale of real estate, in failing to state consid- eration. Miller v. Payette Valley Land & Orchard Co., 178 P. 987, Or. Sup. . (109) In oral contract that if plaintiff could sell the defend- ant's farm for a price and "upon the terms named" in a former written contract, defendant would pay him a commission of 3%, the quoted words had reference to the price specified, and not to the commission to be paid, if the property "is sold, exchanged or bargained for by either party." Oban v. Ducharme, 106 A. 777, Vt. Sup. . (110) A broker's contract for commission "upon consummation of exchange within 24 hours," referred to execution of exchange agreement, and not to actual exchange of deeds. Levy v. Dusen- lerry, 163 P. 231, 32 Cal. App. 411. (111) Where broker had procured a purchaser within time limited, fact that actual exchange of deeds was not made within time allowed for inquiry into title will not defeat his right to commission. Id. (112) Where a broker was employed to sell land at a certain price, and did so, an amount spent by the principal to put the land in condition to bring the price at which it was sold, could not be deducted from the selling price for the purpose of figuring the broker's commission. Sackett v. Southern Land Co., 161 N. W. 448, Iowa Sup. . PLEADINGS, PRACTICE, ETC. 925 (113) Under agreement that broker, acting in the purchase of property, should have one-third of net profits of sale; held, that interest on the enlistment could not be charged in determining the amount of profits. Young v. Canfield's Est., 164 P. 1134, Cal. App. . (114) A contract fixing the compensation of an agent to sell property at the excess of the purchase price over a stated sum; held, plain and unambiguous, so that it could not be so modified as to entitle the agent to compensation based upon what the pur- chase price would have been, if the contract had contained the assumed acreage. Warne v. White, 164 N". Y. Sup. 30. (115) A broker selling realty had no such interest in contract for purchase of land secured by him as authorized him to recover damages for loss of commission from proposed purchaser who re- fused to comply with contract. Hill v. Alexander, 105 S. W. 957, Tex. Civ. App. . (116) Broker held not required under contract to pay over money collected by it and receive back its commissions, but only required to pay difference, after deducting the commissions earned. Parker v. Seattle Land & Imp. Co., 165 P. 1086, Wash. Sup. . (117) Assignee of real estate broker held not entitled to re- cover from owner forfeited amount received from purchaser and paid by broker to secure execution of option contract by owner. Hollwan v. German American Mer. Co., 165 P. 30, Wash. Sup. . (118) A broker is not entitled to a lien on the property sold for his commission. Morse v. Duryea, 192 S. W. 477, 174 Ky. 234. (119) If seller of farm was to receive $40,000, and broker ne- gotiating sale was to receive no commission, but broker procured buyer to pay him $1,000, seller, to whom buyer paid only $40,000, was not liable to pay buyer back $1,000, being retained on bro- ker's part. Gosswiller v. Jansen, 162 N. W. 45, Iowa Sup. . (120) If realty broker, who negotiated sale of farm, was not entitled to commission from seller, and buyer paid him $1,000, on representation such was case, intending to deduct amount from payment to seller, seller was entitled to demand and take 926 AMERICAN LAW REAL ESTATE AGENCY. full price, without deduction, and buyer to recover from broker amount paid him on his representation. Id. (121) Under contract giving exclusive agency for the sale of lots, after specifying time, with provision for transfer of unsold lots when principal had received the aggregate sum due him; held, that payments from the fund collected after termination of the contract period could not be excluded in determining whether sufficient sales were made within that time. Cole v. Merchants' Trust Co., 166 P. 871, Cal. App. . (122) "Ability," within the rule that, to be entitled to com- mission, the broker must procure a customer able, etc., means that he must have the money at the time for cash payment, and not merely property on which he could raise it. Regnor v. Mack- rill, 164 K W. 335, Iowa Sup. . (123) Where a broker brought a landowner and a corporation together, and a lease of the land was made to the corporation, to- gether with an option to purchase, the broker to have a certain commission if the corporation exercised its option, a sister of a stockholder who controlled the corporation could purchase the land for her own use and benefit, without the land being bur- dened with a lien for the broker's commission. Saunders v. Berry, 214 S. W. 58, Ark. Sup. . (124) Under authority to broker to sell lands, terms, "not less than one-fifth down, balance in four equal annual instalments," principals were not bound by a sale 15/26 of price payable at date of transfer of an equity to broker, balance in two annual in- stalments, shortly afterwards discounted and paid to broker, and appropriated by him, all without knowledge of principals. Schmal- ing v. Swain, 183 P. 580, Cal. App. . (125) Owners' agreement to pay broker a commission "if the property is sold or exchanged before six months, is terminable, regardless of who negotiated the sale;" held legal. Greene v. Minn. Billiard Co., 176 K W. 239, Wis. Sup. . (126) In view of Rev. Acts, Sec. 5084, defining an agreement to sell and buy, and Sees. 5031, 5039, 5041, 5043, as to the con- struction of contracts, a contract to sell land, providing for pay- ments in instalments, the deposit of the deed in escrow, and the forfeiture of payments for default; held, not a "selling within PLEADINGS, PRACTICE, ETC. 927 the agreement to pay a commission to the broker" at time of sale. Wright Land & Inv. Co. v. Evan, 186 P. 681, Mont. Sup. . (127) In a broker's action for commission, instructions requir- ing the jury, before finding for plaintiff, to find that the pur- chaser was influenced to purchase the land by plaintiff, were not erroneous, as "influenced", is practically synonymous with "in- duced" or "procured", and, if anything, is weaker than those words. Schwabe v. Estes, 218 S. W. 908, Mo. App. ; Low v. Paddock, 220 S. W. 969, Mo. App. . (128) Agreement by large stockholder to pay broker a commis- sion for effecting a sale of corporate lands; held, when construed with reference to an option contract executed by the corporation only shortly before, to be conditioned upon payment in accord- ance with the terms of the option contract. Hartman v. Selling, 189 P. 887, Or. Sup. . PART VI. FORMS. LISTING, BROKERAGE AND OTHER CONTRACTS. 929 No. 1 Listing of Property with Agent for Sale I, , the owner in fee simple of , do hereby au- thorize and appoint , a real estate dealer of , as my agent to procure the sale of the above-mentioned real estate, and agree to convey the same when a purchaser has been secured. I further agree that said property shall be left with said real estate dealer for sale, for months from date, and there- after until thirty days' notice in writing of withdrawal, and if said shall sell, or in any manner be instrumental in selling said real estate during said time, I will pay said , for his services, dollars, the same to be paid to him out of the first money received on such sale. I will furnish abstract showing safe title in case of sale, and I agree not to place said property in the hands of any other agent or agents during the continuance of this agreement. Property listed at $ Witness my hand this day of , 19 ,19 hereby accept this agency for said property on the terms stated. ,19 hereby agree to purchase the above described property, at the urice, and upon the terms above stated. No. 2 Listing of Property with Agent for Sale (another Form) This agreement made this day of , 19 , be- tween , of , hereinafter called principal, and , hereinafter called agent, witnesseth: That said principal has this day placed with said real estate 931 932 AMERICAN LAW EEAL ESTATE AGENCY. agent for sale the following described real estate, of which said principal is the owner in fee simple, located in the township of , county of , State of , and more particu- larly described as follows (here insert description) : Said real estate agent shall have the agency and sale of said property for a period of months from date, at the stipu- lated price of dollars. If said real estate agent shall sell said property for said price, or some lower price which said prin- cipal may authorize him to accept, then said real estate agent shall receive a commission of per cent on said sale. If said real estate agent shall sell said property for more than the price named above, said principal hereto agrees to divide said excess, half and half, with said real estate agent, in addition to his com- mission. , 19 hereby accept this agency for said property on the terms stated. , 19 hereby agree to purchase the above described property, at the price, and upon the terms above stated. No. 3 Exclusive Agency for the Sale of Real Estate I hereby employ the agency as my sole agent, and give it the exclusive right to sell, as such agent, for months, and thereafter until terminated by five days' notice, in writing, from me, to sell or assist in selling, to exchange, or assist in ex- changing, or finding a purchaser, for the following described real estate, situate in township, county and State of , to-wit : , for the sum and price of dollars, or such other sum as may be hereafter agreed upon, upon the following terms, to-wit : deferred payments to bear per cent, interest from date of sale, and be secured by first mortgage on said real estate. FOEMS. 933 And I hereby agree and bind myself on demand to pay to said agency but of the first purchase money paid on said real estate, upon sale being effected, directly or indirectly, for its services in securing such purchaser, a commission of per cent. upon whatever amount said property is sold for, and should above property be sold to parties who have been negotiating with said agent for said property, within sixty days after withdrawal of this contract of agency, the above named commission is then due such agency. The agency agrees to pay for advertising said property and pushing the sale as fast as possible, and to charge nothing except in the event of sale as aforesaid. Witness my hand this day of , 19 ,19.... hereby accept this agency for said property on the terms stated. ,19.... hereby agree to purchase the above described property, at the price, and upon the terms above stated. No. 4 Real Estate Board Contract of Exclusive Agency to Sell Real Estate ,19.... To In consideration of your listing for sale and undertaking to find a purchaser for the real estate described on the memorandum on the reverse side of this card, I hereby grant and give to you the sole and exclusive right to sell the same for a period of from this time, and thereafter until notified by me in writing. In the event said real estate is sold by you, or by myself, or by any other person or agent during the said time, for such price, and upon said terms, or for a price and upon terms acceptable to me, then, and in either of said events, in consideration of your services in this connection, I promise and agree to pay you a 934 AMERICAN LAW REAL ESTATE AGENCY, regular fixed commission, as adopted by the real estate board, or in the event said real estate is traded or exchanged by myself for other property during said time, and whether by and through your efforts or through my own efforts, or by the efforts of some other person or agent, I promise and agree to pay you such commission on the list price fixed in said memorandum. ,19.... hereby accept this agency for said property on the terms stated. ,19.... hereby agree to purchase the above described property, at the price, and upon the terms above stated. No. 5 Uniform Sale Contract Adopted by the Cincinnati Real Estate Board ,19.... hereby authorize. . and employ as sole agent to sell the following described property, situate in the '., county of , and State of , and known as , for the sum of dollars, payable guarantee . . a marketable title, and will convey said property by deed of general warranty, in fee simple, with release of dower, and in consideration of your efforts to secure a pur- chaser, , agree . . to pay you a commission of per cent, on the sum for which said property may be sold or ex- changed ; and further agree that you shall have the exclusive right to sell said property for a period of six months, and thereafter, until written notice withdrawing the same, and that you shall be entitled to your commission if the property is sold or ex- changed by you, or the undersigned, or any other person, at any price acceptable to the undersigned during the existence of this contract. , 19 FOBMS. 935 hereby accept. . this agency for said property on the terms stated. , 19.... hereby agree . . to purchase the above described prop- erty, at the price, and upon the terms above stated. (On the form, there is space on the back to insert description.) No. 6 Uniform Contract to Procure a Purchaser Adopted by the Cincinnati Real Estate Board ,19.... I hereby agree to sell the following property, viz.: (describe the same), for the sum of dollars, payable (state the terms), and authorize to procure a purchaser for the same, and agree to pay a commission of per cent. on the amount for which said property may be sold. I guarantee the title good, and will convey by deed of general warranty, with release of dower. In consideration of efforts to find a purchaser, I agree that shall have the exclusive right to sell said property for six months, and thereafter until I give written notice withdrawing the same. It is further agreed that shall be entitled to commission if the prop- erty is sold during the existence of this contract by or the undersigned, or any other person, at any price acceptable to the undersigned. ,19.... hereby accept the agency for said property on the terms above stated. ,19.... I hereby agree to purchase the above described property at the price and upon the terms above stated. 936 AMERICAN LAW REAL ESTATE AGENCY. No. 7 Employment of Agent to Secure a Loan ....,19. To I, , do hereby authorize and appoint you as my agent to procure for me a loan of dollars, to be secured by a mortgage on my real estate, which I own in fee simple, and which is described as follows, to-wit: (here insert description contained in the deed), and agree to furnish to the lender, or his attorney, an abstract of title, showing the title to be clear and unincum- bered (if incumbered, state to whom, the amount of the mort- gage, and the book and page where recorded), and promise to execute and deliver a mortgage, with release of dower, to secure the payment of the aforesaid sum, which shall be made payable in .... years from date, and to bear interest at not to exceed per cent, per annum. I further agree that on procuring the said loan I will pay to you a commission of per cent, on the amount of the loan. Your agency to be exclusive, and to continue until , 19. . ., and thereafter until written notice from me withdrawing same. , 19 hereby accept this agency on the terms stated. No. 8 Power of Attorney to Sell Lands Know all men by these presents, that I, , of , have made, constituted and appointed, and by these presents do make, constitute and appoint, , of , my true and lawful attorney in fact, for me and in my name, place and stead, to bargain, sell, and convey in fee simple, by deed of general war- ranty, for such price, upon such terms of credit, and to such per- son or persons, as he shall think fit, the following described prem- ises, situate in county, and State of , and described as follows: (describe the property), giving and granting unto my said attorney full power and authority to do and perform all FORMS. 937 and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully, to all intents and pur- poses, as I might or could do, if personally present, with full power of substitution and revocation; hereby ratifying and con- firming all that my said attorney or his substitute shall lawfully do, or cause to be done, by virtue hereof. In witness whereof, I have hereunto set my hand and seal, this day of , 19 Signd, sealed, and acknowl- (Seal) edged in presence of us : (This must be acknowledged before a Notary Public.) If it is necessary, under the laws of the state, that the wife join in the deed of her husband, then she should join in the power of attorney to sell lands. No. 9 Power of Attorney to Lease Lands Know all men, that I, , of the of , state of , do hereby constitute and appoint , of the of , state of , my attorney in fact, for me and in my name to demise, lease, and to farm let, by leases, duly executed, for such term or number of years, to such person or persons, at such yearly or other rents, in money or kind, as he may think fit, the following premises, or any part thereof, situate in (here de- scribe the premises). Hereby ratifying and confirming all such agreements, receipt for rent, leases, and other things, which shall be made, executed, or acknowledged in the premises, by my said attorney, the same as if I were personally present and did the same. In witness whereof, I, the said , have hereunto set my hand and seal, this day of , 19 Signed, sealed and delivered (Seal) in presence of: If it is necessary that the lease be acknowledged and recorded, then the power also must be. 938 AMERICAN LAW REAL ESTATE AGENCY. No. 10 Contract for the Sale of Real Estate This agreement made and entered into at , this day of , 19 , by and between , of , wit- nesseth that the said hath sold, and doth agree to convey in fee simple unto said , his heirs and assigns forever, by a good and sufficient deed of general warranty, with release of dower, on or before the day of , 19 , upon the punctual payment by said of the consideration money hereinafter mentioned, the following premises, situate in , county of , and State of , and bounded and described as follows: (here give description as in the deed), together with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof. And the said for himself, and for his heirs, executors, administrators, and assigns, does covenant and agree to and with , his heirs and assigns, that he will pay to the said , his heirs and assigns, the sum of dollars, the consideration money for said premises, in the manner following : ...... dollars at the time the said shall execute and deliver a good and sufficient deed of general warranty ; dollars in one year, and dollars in two years thereafter, the same to be secured by notes and mortgages on the premises. All assessments and taxes that now are or may hereafter be levied or assessed on said premises are to be paid in the manner following: all assessments levied hereafter to be paid by the said The said to pay the taxes due and payable , 19 The said hereby agrees that the said shall enter into possession of said premises on the day of , 19. . . ., to use and improve as his own, in a good and husbandlike manner. It is understood by and between the parties to this agreement, that if the said shall fail to pay the said consideration money, or the assessments or taxes as herein stipulated, then this agreement to be void as it regards the said , at his option. In testimony whereof, the said and have here- FORMS. 939 ' unto set their hands and seals, the day and year first above written. Signed and sealed in the pres- ence of us : No. 11 Agreement for Sale and Purchase of Land Agreement made and entered into on this day of 19. ., between , of , hereinafter called vendor, and , of , hereinafter called purchaser, being respectively parties of the first and second part. 1. The said vendor agrees to sell and the said purchaser to buy, for the sum of dollars, 1 all these parcels of land, 2 with the buildings (if any) thereto belonging, situate at , in the county of , bounded and described as follows :' (here describe), all which said premises are set forth in the plans hereto annexed and signed by both parties hereto, together with all the rights, privileges and appurtenances thereunto belonging, or in any wise incident or appurtenant thereto. 4 2. And the vendor further agrees that he will, at his own ex- pense, prepare, and within days from date hereof, deliver to said purchaser, or to his attorneys, an unexecuted deed of said premises, or will furnish him with other sufficient information to enable him to examine the title to the said premises. 3. Should the purchaser insist on any objection to the title or conveyance which the vendor may be unable or unwilling to remove or comply with, the vendor may, at any time, rescind this agreement of sale, and, in that event, he shall return the deposit to the purchase^* who shall not be entitled to any interest, dam- ages or waste. 4. If there should be any error or omission affecting the quan- tity of the land, or in the description of the property, before the actual conveyance of the same, but not afterwards, compensation shall be allowed or given, as the case may require. 5. A deposit of dollars of the purchase money shall be paid by the purchaser to the vendor on the execution of this 940 AMERICAN LAW REAL ESTATE AGENCY. agreement, and the remainder of the purchase money shall be paid to him on the day of next ; 6 and thereupon the vendor, and all other necessary parties, if any, shall execute a proper conveyance of the premises to the purchaser, in fee simple, free from all incumbrances. 6. Possession of said premises shall be delivered to said pur- chaser on the day of next, and as and from that date all rents, taxes, all other income or charges shall, if neces- sary, be apportioned between the vendor and purchaser. 7. If from any cause whatever, except from the wilful neglect or default of the vendor, the completion of the purchase shall be delayed beyond the said day of next, the purchaser shall pay interest at the rate of per cent, per annum on the balance of his purchase money from that date until the pur- chase shall be completed. 8. If the purchaser shall neglect or fail to comply with the foregoing stipulations on his part, the vendor shall be at liberty to rescind the present sale and to resell the premises at auction or private contract ; and any deficiency in price which may happen on said resale, together with all expenses attending it, shall im- mediately afterward be repaid by the present purchaser to the vendor, and shall be recoverable as liquidated damages. In witness whereof, etc. ilf the consideration is payable otherwise than In cash, here add: to be paid as hereinafter mentioned. 2 If a moiety or other undivided interest be sold, here insert: all that undivided moiety (or other portion) of said estate. a In case all or any part of the premises are occupied by tenants, here add: and which said premises (or a part of which said premises) are in the occupation of the several tenants, as shown by the schedule hereto annexed. 4 If sold subject to any exception or reservation, state same here. If sold subject to a mortgage add: The said premises are sold sub- ject to a mortgage for the sum of dollars, made by said vendor to dated day of 19 which said mortgage, with the in- terest thereon, from and after the day of , 19 , the said purchaser hereby assumes. If sold subject to tenancies add: The said premises are sold subject to the existing tenancies, a schedule of which shall be given to the purchaser upon the execution of the conveyance herein provided for. 5 Indicate the place selected to close the transaction; i. e., to pay the remainder of the purchase money, and to execute and deliver the deed. FORMS. 94.1 No. 12 Agreement for the Sale of Land, with Special Conditions Agreement made this day of , 19 , between , of , hereinafter called the vendor, and , of , hereinafter called the purchaser. 1. The said vendor agrees to sell and the said purchaser agrees to buy, for the sum of dollars, whereof dollars shall be paid immediately on the execution of this agreement, and the residue on the day of next, at the office of , when and where the purchase shall be completed, in fee simple, free from any incumbrances, of all that estate situate at , bounded and described as follows: 2. The vendor shall prepare, or cause to be prepared at his own expense, a proper deed of conveyance (with full covenants of warranty) of the premises to the purchaser, and shall deliver such deed, or cause it to be delivered to the purchaser, or his at- torney, for examination, not less than days before the said day of , 19 3. The possession shall be retained by the vendor up to the said date fixed for completion of the purchase, when the purchaser shall pay the residue of the purchase money, and the vendor shall execute said deed, whereupon possession shall be delivered at once to the purchaser. 4. All taxes, rates and assessments upon said property, not discharged by the vendor, shall be apportioned between him and the purchaser as from that day. 5. If from any cause whatever the purchase shall not be com- pleted on the said day of , 19 , the purchaser shall pay interest at the rate of per cent, per annum on the unpaid purchase money from that date until the completion of the purchase. In witness whereof, etc. 94:3 AMERICAN LAW EEAL ESTATE AGENCY. No. 13 Agreement for Sale, with Special Conditions (Short Form) Agreement made the day of 19. . . ., between , of , party of the first part, and , of , party of the second part. 1. The said party of the first part, for the consideration here- inafter mentioned, covenants, promises and agrees with the said party of the second part, that he, the party of the first part, shall and will, on or before the day of next, at the cost and charge of the said party of the first part, by a good and suffi- cient deed of conveyance, free from all incumbrances, grant and convey unto the said party of the second part, all that parcel of land , together with all and singular the buildings and other improvements and appurtenances thereunto belonging, to have and to hold to him, the said party of the second part, his heirs and assigns forever. 2. And the said party of the second part hereby covenants, promises and agrees with the said party of the first part, that he, the said party of the second part, shall and will well and truly pay unto the said party of the first part, the sum of dol- lars, upon the delivery of the aforesaid mentioned deed of convey- ance. In witness whereof, etc. No. 14 Agreement for the Sale of Land, with Provision Against Nuisances This indenture, made this day of ., 19. . . ., be- tween , of , party of the first part, and , of , party of the second part, witnesseth : Said party of the first part, in consideration of the sum of dollars to him in hand paid, and of the covenants, agree- ments and conditions herein, hereby agrees to sell unto the said party of the second part, all that certain piece of land in the county of and State of , described as fol- lows: (describe), for which the said party of the second part FOBMS. 943 hereby agrees to pay said party of the first part in manner follow- ing: Said party of the first part, upon receiving such payments, in the manner and at the times hereinabove specified, shall execute and deliver to said party of the second part, or to his assigns, a warranty deed, conveying said premises, free from all incum- brances, and said deed shall contain a provision against the al- lowance or permission of nuisances, especially as to the erection of buildings as follows: No cottage, or other building, shall be erected or permitted within fifty feet of the front line of street, nor within feet of the street line, or any other lot in said premises; and said party of the second part, his heirs, executors, administrators or assigns, shall not, at any time here- after, during his or their ownership, erect, make, establish, carry on and promote, cause or suffer to be erected, established or car- ried on, in any manner, on the above described premises, any slaughter-house, livery-stable, soap-factory, foundry, tanning- factory, bakery, gunpowder-factory, or other manufactory, trade, business or calling whatsoever, which may be, in any way, noxious or offensive to said neighborhood, or to erect, build or commence any building whatsoever with intent to use the same for any of the purposes aforesaid. And it is understood that the stipulations herein shall apply to and bind the heirs, administrators and assigns of the respective parties hereto. In witness whereof, etc. No. 15 Agreement for the Purchase of Farm Land on Long Time Agreement made this day of , 19 . . . ., between , of , party of the first part, and , of , party of the second part. 1. Said party of the first part, in consideration of the sum of dollars, to be paid to the said party of the first part, and of the covenants to be performed by the said party of the second part, as hereinafter expressed, hereby agrees to sell to the said party of the second part, all that certain tract of land situate in the township of , county of , and State of , 944 AMERICAN LAW SEAL ESTATE AGENCY. known and described as follows: (describe), with the privileges and appurtenances thereunto belonging. 2. The said party of the second part, in consideration of the covenants herein contained on behalf of the said party of the first part, agrees to purchase of the said party of the first part the above described land, and to pay for the same to said party of the first part, or his legal representatives, the sum of dol- lars, in manner following, that is to say (set forth in detail the terms of payment), with interest, to be computed from the date of these presents, at the rate of per cent, per annum on the whole sum that shall be, from time to time, unpaid, and to be paid annually, both principal and interest to be paid at aforesaid; and also, that he will, so long as any part of the prin- cipal or interest of the said consideration money remains unpaid, well and faithfully, in due season, in each and every year, pay, or cause to be paid, all taxes and assessments, ordinary and ex- traordinary, that may, for any purpose whatever, be levied or as- sessed on said premises or on this contract; and that he will not commit, or suffer any other person to commit, any waste or dam- age to the said land, or the appurtenances, except for firewood or otherwise, for his own use, or while clearing the lands for cultiva- tion in the ordinary manner. 3. That said party of the first part further covenants and agrees with the said party of the second part, that upon the faith- ful performance by the said party of the second part of the cove- nants and agreements by him to be performed, and upon the pay- ment of the several sums of money above mentioned, and the in- terest thereon, at the times, in the manner, and at the place above mentioned, to the said party of the first part, that thereupon the said party of the first part will well and faithfully execute and deliver a good and sufficient deed or deeds, and thereby convey to the said party of the second part, his heirs and assigns, a good and unincumbered title, in fee simple, of the above described premises, with their appurtenances. 4. It is further mutually covenanted and agreed, by and be- tween the parties hereto, that the said party of the second part may enter on the said land, and remain thereon and cultivate the same, as long as he shall fulfil and perform all the covenants and agreements hereinbefore mentioned, on his part to be fulfilled and FORMS. 945 performed, and no longer; and that if he shall, at any time here- after, violate or neglect to fulfil any of said agreements, he shall forfeit all right or claim under this contract, and be liable to said party of the first part for damages, and shall also be liable to be removed from the said land, in the same manner as is provided by law for the removal of a tenant who holds over after the ex- piration of his lease. It shall be lawful for the said party of the first part, at any time after the violation or no'n-fulfillment of any of the said agreements on the part of the said party of the second part, to sell and convey the land, or any part thereof, to any other person whomsoever; and the said party of the first part shall not be liable in any way, or to any person, to refund any part of the money which he may have received on this contract, or for any damages on account of such sale. And it is hereby expressly understood and declared that time is of the essence of this contract, and that unless the same shall in all respects be complied with by the said party of the second part, at the re- spective times and in the manner above limited and declared, that the said party of the second part shall lose and be debarred from all rights, remedies, or actions, either in law or equity, under this contract. 5. This contract is hereby declared to be binding on the re- spective representatives of the parties hereto. In witness whereof, etc. No. 16 Agreement for the Purchase of Land, with Provision for the Payment of Purchase Money by Instalments, the Purchaser Becoming Tenant of the Vendor Agreement made this day of , 19 , between , of , party of the first part, and , of , party of the second part. 1. Said party of the first part, in consideration of the sum of dollars to him duly paid, hereby agrees to sell unto the said party of the second part, all that (description) for the sum of dollars, which the said party of the second part hereby agrees to pay the party of the first part, as follows : The sum of 946 AMEKICAN LAW HEAL ESTATE AGENCY. dollars on the day of next, the sum of dollars on the day of , 19 . . . ., with interest on each instalment from the date of these presents, at the rate of per cent, per annum, until the sum is paid. 2. Said party of the second part also agrees to pay all the taxes and assessments that vshall be taxed or assessed on said premises from the date hereof until the said sum shall be fully paid as aforesaid. 3. And the said party of the first part, on receiving such pay- ment, shall, at his own proper cost and expense, execute and de- liver to the said party of the second part, or to his assigns, a good and sufficient deed of said premises, with full covenants of war- ranty. 4. It is mutually agreed between the said parties that the said party of the second part shall have possession of said premises on the day of , 19...., and shall keep the same in good condition, as they are in at the date hereof, until the said sum shall be paid as aforesaid. 5. Until the completion of the purchase, on or before the day of , 19 , the said party of the second part shall hold the said premises as tenant to the vendor, as a yearly rent of dollars, payable semi-annually, on the day of and on the day of in each year, the first of such payments to be made on the day of , 19 In case the rent paid in any year shall exceed per cent, per annum upon the amount of the purchase money which shall, in any such year, for the time being, remain unpaid, such excess shall go to and be applied in reduction, pro tanio, of the principal of such certain purchase money. 6. If said party of the second part shall fail to perform this contract, or any part of the same, said party of the first part shall immediately, upon such failure, have the right to declare the same void, and retain whatever may have been paid on said con- tract, and all improvements that may have been made on said premises, and may consider and treat the party of the second part as his tenant holding over without permission, and may take im- mediate possession of the premises, and remove the party of the second part therefrom. POEMS. 947 7. And it is agreed that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties. In witness whereof, etc. No. 17 Sale of Lot on Weekly or Monthly Payments This agreement made this day of , 19...., by and between , henceforth called the seller, and , henceforth called the buyer, witnesseth: That the seller had sold to the buyer Lot No in addition to the city of , for dollars, upon the following terms and condi- tions, < to-wit : dollars cash ; the balance, dollars per week, payable on each Saturday after date, to the seller's credit, at the bank of , the bank crediting pay- ments on the book furnished by the seller, until said bal- ance is paid down to a sum which the buyer can borrow from a building and loan association, when the seller shall convey said premises to the buyer by warranty deed, furnishing abstract of the title to said lot, showing a good and merchantable title -in him, clear of incumbrances, except taxes and special assessments, and the buyer shall borrow said balance then owing hereon, , and pay the seller off in full. Said balance of dol- lars shall bear interest from the date hereof, at the rate of per cent, per annum, and at the end of each year from date hereof, the interest for said year shall be deducted from the pay- ments made during the said year, and the balance credited on the principal. The buyer shall have possession of said premises from date hereof, and he agrees to use the same well, keep the house in good repair, and not commit, or permit, waste to be committed thereon. The buyer assumes and agrees to pay all taxes on said lot maturing in 19 , and thereafter; also, the balance of the street and sewer assessments thereon, beginning with that due ,19 , and any future ones. The buyer agrees to keep the house on said lot insured against loss by fire, lightning or windstorm, for its fair insurable value, in the seller's name, and for the joint benefit of the parties hereto, seller to have posses- 948 AMERICAN LAW EEAL ESTATE AGENCY. sion of the policies until deed is made; also, the buyer is to have the benefit of the unexpired insurance now on said house. A default of the buyer in making any of the payments herein provided for, and a continuance thereof, as to said weekly pay- ments, for thirty days, shall give the seller the right to declare the whole amount owing him hereunder due and payable. To ex- ercise said right the seller shall give the buyer written notice of his decision to so exercise said option, by letter mailed to the buyer, through the United States Post Office at , or else- where, addressed to the buyer at the premises aforesaid, to-wit, The mailing of said notice shall be taken as the service of the same, the seller assuming no responsibility for the delivery thereof. Within ten days from the giving of such notice, as afore- said, the buyer shall pay the balance then owing the seller here- under, and take and receive the deed for the premises on the con- ditions above named; or, in lieu thereof, shall vacate and sur- render the premises to the seller within said period, in which case the payments made hereon to said time shall be taken and held by the seller, as and for rent of the premises, while so occupied by the buyer, and as liquidated damages for such default. The fail- ure of the seller to exercise such right, upon any default here- under, shall not bar or prejudice his right so to do on any future default, but said right shall continue throughout the life of this contract. Executed by the parties, in duplicate, the day and year first above written. No. 18 Agreement for the Sale and Purchase of a Dwelling-House This agreement made this day of , 19. . . ., be- tween , of , hereinafter called the vendor, and , of , hereinafter called the purchaser, witnesseth : That the said vendor hereby agrees to sell to the purchaser, who agrees to purchase for the sum of dollars, in fee sim- ple, free from all incunibrances of and in all that dwelling-house, with the stable and other outplaces, and the garden and other land thereto belonging, situate on street, in the town of , and State of , heretofore in the occupation of said FORMS. 949 vendor, and all which said premises are set forth in the plan hereto annexed, signed by the parties hereto, together with all the rights, privileges, and appurtenances thereto belonging, which said premises are sold and purchased upon and subject to the following terms and stipulations, viz.: 1. That the purchaser shall pay to the said vendor, upon the execution of these presents, a deposit of dollars on and part of his purchase money, and pay him the residue thereof on the day of next, when the purchase shall be com- pleted. 2. That the purchaser shall take, and on the completion of the purchase, pay for the fixtures and fittings in the said dwelling- house, and building, and specified in the schedule hereto annexed, at the valuation therein mentioned. 3. That on payment of the purchase money and the value of said fixtures and fittings, the vendor shall execute a prepared con- veyance of the property according to the stipulations herein con- tained, which conveyance shall be prepared by and at the expense of the vendor, unexecuted, and sent to the said purchaser for ap- proval days prior to the said day of next. 4. That if, from any cause whatever, the purchase shall be de- layed beyond the day of next, the purchaser shall thenceforth be entitled to the rents and profits of the property, and shall pay interest at the rate of per cent, per annum on the purchase money till the completion of the purchase. 5. That if any obstacle shall arise in respect to the title, the completion of the purchase or otherwise, the vendor shall be at full liberty at any time to abandon this contract on returning the deposit money only to the purchaser. 6. That if the purchaser shall refuse or neglect to complete his purchase at the time hereby appointed, his deposit money shall be forfeited to the vendor, who shall be at full liberty, at any time afterward, to resell the property, either by public auc- tion or private contract, and the deficiency, if any, occasioned thereby, together with all losses, damages and expenses of and at- tending the same, shall be borne and paid by the purchaser, but any increase in the price obtained at such sale shall belong to the vendor. 7. That time shall be of the essence of the contract. 950 AMEEICAN LAW EEAL ESTATE AGENCY. 8. That for the due performance of this contract each party binds himself unto the other in the penal sum of dollars, which shall be regarded as liquidated damages between them, in addition to and irrespective of any right, liability and remedy which either of them may have acquired or be subject to by vir- tue hereof. In witness whereof, etc. No. 19 Agreement to Purchase, Subject to a Mortgage which the Purchaser Assumes Agreement made this day of , 19...., by and between , of , in the county of and State of , party of the first part, and , of , in the county of and State of , party of the second part. 1. The party of the first part agrees to sell and the party of the second part to purchase, a certain tract or parcel of ground situate and described as follows, to-wit: (describe). 2. Said premises are to be conveyed within days from this date, by a good and sufficient warranty deed of the party of the first part, conveying a good and clear title to the same, free from all incumbrances, excepting a mortgage thereon made by the said party of the first part to for the sum of dollars, dated the day of , 19 , and recorded in Registry of Deeds Book , page , which said mort- gage, and the interest thereon to the date of the conveyance hereby directed to be made, the said party of the second part is to assume and pay as part of the purchase money of said prem- ises. 3. For such deed and conveyance the party of the second part is to pay to the party of the first part the further sum of dollars, of which dollars have been paid this day, dollars are to be paid in cash upon the delivery of said deed, and the remainder is to be paid by the note of the party of the second part, dated the day of next, and bearing interest at per cent, per annum, payable semi-annually, and se- cured by a power of sale mortgage, in the usual form, upon the FORMS. 951 said premises, such note to be payable to the order of the said party of the first part, in years from the date hereof. 4. Full possession of the said premises (either free from all tenants, or, if so, subject to a lease of same made by the party of the first part to . . . . , for the term of years from 19 ), is to be delivered to the party of the second part at the date of the delivery of the deed, the said premises to be then in the same condition in which they now are, reasonable use and wear of the buildings thereon only excepted. 5. The deed is to be delivered and the consideration paid at In witness whereof, the said parties hereto, and to another in- strument of like tenure, set their hands and seals, on the day and year first above written. No. 20 Contract of Sale of Fee Simple or Leasehold of Real Estate This agreement, made in duplicate, this day of , 19 , between , seller, and , purchaser, witnesseth: The said seller hereby agrees to sell and convey, and the said purchaser hereby buys and agrees to pay for, the following prop- erty (give full description), being the property described in a certain dated , 19 . . . . , and recorded among the land records of , in book number , page (The said property is in fee simple.) (The said property is a leasehold, subject to a ground rent of $ per year, redeem- able after years from the date of lease at ) (The said property is a ground rent, which is redeemable after years from the date of the lease at ) [Strike out all ex- cept kind of property intended.] The purchase price is dollars ($ ), payable in cash on the day of ,19 Of the above sum there has been paid on account the sum of dollars ($ ), which last mentioned sum is to be repaid to the pur- chaser, in the event that the title is not satisfactory; time is of the essence of this agreement. Possession to be given on the ...... day of , 19 The property is subject to the following incumbrances : Rentals, taxes, water-rent, ground-rent, X 952 AMERICAN LAW SEAL ESTATE AGENCY. and other charges are to be adjusted to the date of transfer. The title is to be free of all incumbrances, and satisfactory to the ex- aminer thereof. Witness our hands and seals on the day and year first afore- said. (Seal) (Seal) (If the property is in fee, the wife also should sign.) No. 21 Sale and Purchase, where Part of Purchase Money is Paid by Mortgage Agreement made the day of , 19 . . . . , by and between , of , hereinafter called the vendor, and , of , hereinafter called the purchaser. 1. The said vendor hereby agrees to sell and convey to the said purchaser the messuage or tenement, and lot or piece of ground thereunto belonging, situate (state where) for the sum or consideration of dollars, to be paid by the said purchaser in way and manner as follows, viz. : dollars to be paid by the purchaser net, payable in years from the date hereinafter mentioned, with interest, payable semi-annually, at the rate of per cent, per annum, and secured by a mortgage of said premises, made in the usual form, with power of sale, and dollars, being the remainder of said consideration, to be paid upon the delivery to said purchaser of a full and satisfactory deed of conveyance for the said premises, free from all incum- brances, and possession thereof, on or before the day of next. 2. And the said purchaser hereby agrees to buy the above de- scribed premises from the said vendor for the price or sum above mentioned, and to pay and settle for the same in the way and manner, and at the time above set forth. The conditions of this agreement to extend to the heirs, executors, administrators and assigns of both contracting parties. In witness whereof, etc. FORMS. 953 No. 22 Agreement for the Sale and Purchase of Land Articles of agreement made and concluded this day of , 19 , by and between , of , in the State of , and , of , in the State of First. The said . . . ., in consideration of the sum of dollars to him paid by the said , the receipt whereof is hereby acknowledged, and in further consideration of the promise of the said herein contained, doth buy, bargain and agree to and with said , that he will, on or before the day of next, make and deliver to the said a good and sufficient deed, with the usual covenants of warranty, release of dower, etc., all of that tract of land situate, lying and being in the township of , in the county of , and State of , known as the , and bounded and described as fol- lows: (describe). Second. And in consideration whereof, the said hereby promises and agrees to and with the said that he will, on said deed being tendered to him by the said , on or before the said day of next, pay to the said the further sum of dollars, in addition to the payment already made, being the balance of the purchase money hereby agreed upon for the said tract of land. And to the true and faithful performance of all the agreements herein contained, on the part of the said ...... and , each of them binds himself, his heirs, executors and administrators, to the other, and his heirs, executors and administrators. In testimony whereof, we have hereunto, and to a duplicate hereof, set our hands and seals, on the day and year first herein- above written. Executed and delivered in the presence of: 954 AMERICAN LAW REAL ESTATE AGENCY. No. 23 Agreement for Sale, with Lease Clause This agreement made and entered into this day of , 19...., between , party of the first part, and , party of the second part, witnesseth: That if the party of the second part shall first make the pay- ments and perform the covenants hereinafter mentioned on part to be made and performed, the said party of the first part hereby covenants and agrees to convey to the said party of the 6econd part, in fee simple, clear of all incumbrances whatever, by a good and sufficient warranty deed, the lot and piece or parcel of ground, situate in the county of and city of , known and described as follows, to-wit: (describe). And the said party of the second part hereby covenants and agrees to pay to the said party of the first part, the sum of dollars, in the following manner, to-wit : with interest at the rate of per cent, per annum, payable annually, on the whole sum remaining, from time to time, unpaid, and to pay all taxes, assessments or impositions that may be legally levied or imposed upon said land, subsequent to the year 19 And in case of the failure of the said party of the second part to make either all the payments, or any part thereof, or perform any of the covenants on part hereby made and entered into, at the time and in the manner herein provided, this contract shall become and is hereby made a lien on the above described tract from first party hereto to second party, and the payments herein provided for shall be and are hereby made a lien upon said prem- ises for the several terms between the time of said payments, and upon such failure this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by , and this contract and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of damages by sustained, and shall have the right to re-enter >and take possession of the premises aforesaid. The second party shall also procure insurance on the building or buildings now on said land, or that shall be hereafter erected on said land, for such sum as the same can be insured for, not FORMS. 955 to exceed the amount due on this contract, in some good company or companies, to be selected by the first party, such insurance to be for the benefit and for the further security of the first party. It is mutually agreed, by and between the parties hereto, that the time of payments shall be of the essence of this contract, and that all the covenants and agreements herein contained shall be understood to be obligatory upon the heirs, executors, adminis- trators and assigns of the respective parties. In witness whereof, etc. No. 24 Agreement for a Conditional Sale of Property This agreement made this day of , 19 , be- tween , of , party of the first part, and , of , party of the second part, witnesseth : Said party of the first part does hereby demise and lease unto the said party of the second part the following described premises, situate in the county of , state of , to-wit: (de- scribe), with all the rights, privileges and appurtenances there- unto belonging, to have and to hold the same for the period of months (or years) from the date hereof. In consideration of said demise and lease, said party of the second part hereby agrees to pay as rent for said premises, in lawful money of the United States, as follows, viz., the sum of dollars, cash in hand at the execution of this instrument, and the sum of dollars per month, on the day of each and every month thereafter to and including the day of , 19 ; and also, in addition to the foregoing sums, to pay as rent all taxes and assessments, including the taxes for the current year, which may, from time to time, be levied or charged against said premises by the State of , or by any govern- mental authority under the laws of said State, at or before the time whereof they shall be payable, so as to avoid all penalties on account of non-payment thereof. Also, at all times, to keep said property insured against loss or damage from fire, in some reliable insurance company, to be approved by said party of the first part, in the sum of dollars, loss payable to the party 956 AMERICAN LAW REAL ESTATE AGENCY. of the first part, as his interest may appear, policies for which in- surance shall be delivered to the party of the first part. In the event that the party of the second part shall, at any time, fail to pay such taxes or assessments, when due and pay- able, or to provide and maintain such insurance, then, in either said event, the party of the first part may, at his option, either pay such taxes or assessments, or provide such insurance, in which case the amount so paid by the party of the first part, together with interest thereon, at the rate of per cent, per annum, from the date of such payment, shall be payable upon demand, as part of the rent reserved; or, in the event of the failure of said party of the second part to make such payments, or any of them, at the times and in the manner above set forth, the party of 'the first part shall have the right to declare this lease at an end, and to re-enter and take possession of said demised premises and expel said party of the second part therefrom, without in any wise being a trespasser in so doing; and the failure of the said party of the first part, at any time or times, thus to re-enter and take such possession, shall not be construed as a waiver on his part, or to estop him at any time thereafter from so doing, the cause of forfeiture then continuing or upon any recurrence thereof. Said demised premises shall be used and occupied as and for no other purpose whatsoever; and the said party of the second part shall exercise reasonable care in the preservation of said demised premises. At the expiration of this lease, whether by the expiration of the full term thereof, or by reason of a forfeiture by the party of the second part, under the stipulations therein contained, said party of the second part shall surrender to said party of the first part said premises, peaceably and in good order, natural wear and tear and the act of God excepted, and the occupation of said premises thereafter shall give the party of the second part no rights therefrom as a tenant. It is further agreed, as a consideration of this lease, that the party of the first part does hereby give and grant unto the said party of the second part at, or at any time prior to, the termina- tion of this lease, by lapse of time or forfeiture thereof, the right and option to purchase said demised premises, upon the following terms, to-wit: To pay to such party of the first part, such sum FOEMS. 957 as added to the payments theretofore made, less such payments as shall have been made for taxes, assessments and insurance, whether made by the party of the first part or by the party of the second part, and if paid by the party of the first part, with in- terest thereon at per cent, as equaling the sum of dollars, together with such additional sum as would equal interest at the rate of six per cent, per annum upon the monthly payments from the date hereof until the sum shall have been paid; such payments having thus been made, the party of the first part shall execute and deliver to said party of the second part his warranty deed for said premises, upon the payment to him, the said party of the first part, by the said party of the second part, in cash, the further sum of dollars ; provided that said party of the second part shall have the right to divide said last sum into five equal annual payments, and secure the payment thereof, of his promissory notes therefor, due respectively on or before one, two, three, four and five years from said date, said notes to be nego- tiable and payable to the order of the party of the first part at some bank in the city of , to bear interest at the rate of per cent, per annum, payable semi-annually, and payment thereof to be secured by mortgage upon said demised premises. It is expressly understood and agreed that unless, and until the party of the second part shall exercise the option hereby granted him to purchase said demised premises, and to make the payments and execute the notes and mortgages requisite to the exercise of such option, his only estate in said premises shall be that of ten- ant thereof. And it is further agreed that said party of the second part shall not sublet said premises, nor assign this lease and condition to purchase, without the written consent of the party of the first part first had and obtained and endorsed hereon. In witness whereof, etc. 958 AMERICAN LAW EEAL ESTATE AGENCY. No. 25 Agreement for the Sale of Building Lot, with Option to Pur- chase Adjoining Lots This agreement made the day of , 19 , be- tween , hereinafter called the vendor, and , herein- after called the purchaser. The vendor will sell and the purchaser will buy, in fee simple and unincumbered, all that parcel or land numbered on the plan heretofore annexed, for price of , to be paid for upon the tender of a good and sufficient deed. In consideration of the agreement to purchase hereinabove con- tained, the purchaser shall have the option, at any time during the period of months from the date hereof, of purchasing all or any of the lots set forth on said plan, in addition to the lot now agreed to be purchased at the price of ....... Such option shall be exercised by the purchaser giving to the vendor one cal- endar month's notice, in writing, of his intention to purchase, and specifying the lot or lots to be purchased, and such purchases shall be completed at the office of the vendor's attorney, upon the payment by the purchaser to the vendor of the price for each lot of ; provided, that if the purchaser, having given notice as aforesaid of exercising the said option, shall fail to complete the purchase comprised in such notice, in accordance with this agree- ment, he shall not be entitled at any subsequent time to exercise such option in respect of the same premises, and the option shall thereupon be determined, without prejudice to any rights which the vendor may have against the purchaser by reason of such de- fault. It is expressly agreed that, for all purposes connected with the exercise of the option hereby given, time shall be deemed to be of the essence of the contract. The property is sold, and will be conveyed subject to the re- strictions and stipulations contained in the schedule hereto an- nexed, for the benefit of the vendor's adjoining land, and the con- veyance to the purchaser shall contain such provisions and cove- nants as the vendor may reasonably require for giving effect to and enforcing said restrictions and stipulations. In witness whereof, etc. FORMS. 959 No. 26 Agreement that Purchaser May Retain Part of Purchase Money Until a Defect in the Title is Removed Agreement made this day of , 19 , between , of , hereinafter called the vendor, and , of , hereinafter called the purchaser. Whereas, by a contract bearing date the day of , 19. . . ., the said vendor agreed to sell to the said purchaser, for the sum of dollars, the parcel of land in said contract described; and whereas, in the course of investigating the title, it is found that there is an undis- charged mortgage upon the said premises, and that the amount due upon said mortgage is in dispute, so that it can not be imme- diately discharged, but the said purchaser has agreed to complete said purchase immediately, on being allowed to retain the sum of dollars out of the purchase money until the said mortgage shall be satisfied and cancelled of record. Now, these presents witness that, in pursuance of such arrange- ment, he, the said purchaser, hereby agrees to pay the remainder of said purchase money, and to complete the said purchase, when- ever the said vendor shall cause said mortgage to be discharged, and until such time to pay interest on the said sum retained out of the purchase money, at the rate of per cent, per annum. And it is hereby mutually agreed that, in case the said vendor shall be unable or shall neglect to procure a discharge of said mortgage within calendar months from the date hereof, the said sum of dollars so retained as aforesaid out of the said purchase money shall be forfeited, and shall belong to the said purchaser, who shall be at liberty to retain the same to apply to the payment of said mortgage, so far as required, and as liqui- dated damages in respect of the said defect of title; and there- upon the said purchaser shall be no longer liable to pay or ac- count for said sum, but shall be absolutely discharged therefrom, and the said vendor shall be discharged from all obligation to procure a discharge of said mortgage. In witness whereof, etc. 960 AMERICAN LAW BEAL ESTATE AGENCY. No. 27 Receipt for Deposit by Purchaser $.. ,,19. Received of , dollars, as a guaranty of good faith accompanying offer of dollars, on terms as set forth in a written proposition this day made to the undersigned Real Estate Agent, for the purchase of This offer is subject to owner's approval. If accepted, the above amount will apply as part of purchase price, and if refused the above amount will be refunded. If offer is accepted, and pur- chaser refuses to fulfil his part of said contract, the dol- lars will be forfeited to the undersigned agency. No. 28 Agreement to be Signed by a Purchaser of Land at Auction I hereby acknowledge that I have this day purchased, at public auction, all that lot of land (follow with full description), for the sum of dollars, and have paid into the hands of , auctioneer, the sum of dollars, as a deposit and in part payment of the said purchase money; and I hereby agree to pay the remaining portion of the purchase money unto , the vendor, on or before the day of next, in accord- ance with the conditions of the sale. Witness my hand and seal this day of , 19 No. 29 Agreement to be Signed by an Auctioneer After a Sale of Land at Auction I hereby acknowledge that has been this day declared by me the highest bidder and purchaser of all that certain lot of land (giving description), at and for the sum of dollars, and that he has paid into my hands the sum of dollars, as a deposit and in part payment of the purchase money; and I FORMS. 961 hereby agree that the vendor, , shall, in all respects, fulfil the conditions of the sale. Witness my hand and seal, this ....... day of , 19 Auctioneer. No. 30 Agreement for Exchange of Properties An agreement made this day of , 19...., be- tween , of , party of the first part, and , of , party of the second part. 1. The said party of the first part shall give, and the said party of the second part shall take, the fee simple in possession of all that parcel of land (describe it), with the appurtenances, free from any incumbrance, in exchange for the hereditaments hereinafter agreed to be given by the said party of the second part; and the said party of the second part shall give, and the said party of the first part shall take, all that parcel of land (describe it), with the appurtenances, free from any incumbrance, in exchange for the hereditaments hereinbefore agreed to be given by the said party of the first part. 2. Each party shall, within days from the date hereof, deliver to the other of them, or his solicitor, an unexecuted deed of the premises to be conveyed by him, or will furnish him with other sufficient information to enable him to examine the title to such premises. 3. The said exchange shall be completed on the day of next, by proper conveyances, to be respectively prepared by and at the expense of party by whom they are to be made. 4. Each party shall, on completion of the exchange, be let into the possession of the premises agreed to be taken in exchange by him, or as from the said day of , 19. . . ., and on or as from that day all taxes, rates, and other incumbrances, shall be discharged by the other party. In witness whereof, etc. 962 AMEKICAN LAW EEAL ESTATE AGENCY. No. 31 Agreement for the Exchange of Parcels of Land Agreement made this day of , 19 . . . . , between , of , party of the first part, and , of , party of the second part. Whereas the said party of the first part is the owner in fee simple of a certain parcel of land, with the buildings thereon, situate in .... aforesaid, bounded and de- scribed as follows, viz.: (describe). And whereas, the said party of the second part is the owner in fee simple of a certain parcel of land, situate in said , bounded and described as follows, viz.: (describe). And whereas the said parties have agreed to make an exchange by way of mutual sale conveyances of their respective properties, now it is agreed as follows: 1. That the said party of the first part shall, in consideration of the property hereby agreed to be conveyed by the said party of the second part to the said party of the first part, and of a sum of money to be paid by the said party of the second part to the said party of the first part, as hereinafter mentioned, sell and convey to the said party of the second part, said described land of said party of the first part, with the buildings thereon, and the appurtenances thereof, in fee simple, free from all incumbrances. 2. That the said party of the second part shall, in considera- tion of the property hereby agreed to be conveyed by the said party of the first part to the said party of the second part, sell and convey to the said party of the first part, the said described land of said party of the second part, with the appurtenances thereof, in fee simple, free from all incumbrances, and shall pay to the said party of the first part the sum of money hereinafter mentioned. 3. The said premises belonging to the said party of the first part being considered to be of greater value than the said prem- ises belonging to the said party of the second part by the sum of dollars, the said party of the second part shall, upon the execution of said conveyance, pay to the said party of the first part the sum of dollars, the difference in value of the said premises. 4. The said exchange shall be completed on the day FORMS. 963' of > 19 , at the office of , at , when each of said parties shall, by good and proper deeds, convey the said premises belonging to him, unto the other of them, free of all in- cumbrances. 5. Each of said parties shall be entitled to the possession and to the receipt of the rents and profits of the premises hereby agreed to be conveyed to him, from the . . day of 19 6. If from any cause whatever, the said respective convey- ances shall not be completed on or before the said day of .- next, interest at the rate of per cent, per annum, upon the sum to be paid for equality of value as aforesaid, shall be paid by the said party of the second part, from the day of next, until the completion of said conveyance. In witness whereof, etc. No. 32 Agreement for the Sale of Building Lots, the Vendor to Make Advances Agreement made this day of , 19 , between , of , hereinafter called the vendor, party of the first part, and , of , hereinafter called the purchaser, party of the second part. 1. The vendor agrees to sell and the purchaser agrees to buy, for the sum of dollars, being at the rate of dol- lars for each of land comprised in the parcel of land Hereinafter described, all that piece of land situate , con- taining , and set forth in the plan hereto annexed, with the appurtenances, in fee simple, in possession, free from all in- cumbrances, with the right of using and enjoying the streets ad- Joining the same, and the common passage-way shown in said plan, and all outlets thereof, in common with all other persons entitled to use and enjoy the same. 2. The purchase money shall be paid by the purchaser to the vendor on or before the day of , 19 , at the office, No. on street, or elsewhere, as the vendor may direct, and instalments of such purchase money may be paid at any time, and the vendor shall convey to the purchaser, at any time, the 964 AMERICAN LAW REAL ESTATE AGENCY. lot of land upon which any house shall have been built, in the manner hereinafter provided, upon the payment of the above named stipulated price of said land, and all advances made by the vendor in respect of the house built upon the same. The pur- chaser shall pay to the vendor interest, at the rate of per cent, per annum, on said purchase money, from the day of , 19...., and interest at the same rate on all advances made by the vendor to the purchaser, as herein contemplated, until the said purchase shall be completed. 3. The purchaser shall be entitled to the immediate possession of the said piece of land, and shall bear and pay all taxes, rates and assessments in respect to the same, as if the said piece of land had been conveyed to him. 4. The purchaser shall not dig for or remove from said piece of land, or any part thereof, any gravel, sand, clay, or other sub- stance, beyond the necessary excavations for the building to be erected thereon, without previous consent, in writing, of the vendor. 5. The purchaser shall, within one calendar month after the execution of these presents, commence, and without intermission, and with reasonable expedition, proceed with the erection of houses on the said piece of land, and shall completely finish, fit for habitation, the said houses, on or before the day of , 19 6. Such houses shall front upon street aforesaid, and shall be erected in a proper workmanlike manner, in accordance with the plans and elevations to be first approved of, in writing, by the vendor's architect, and shall be built of good materials, and the said houses shall be set back feet from said street. 7. If the purchaser shall, in all respects, observe and perform his part of the agreement, the vendor will advance to him, for the purpose of assisting him in the erection of the said houses, the sum of dollars, in respect of each house, at the time and in the sums following, viz. : But it is hereby agreed that the vendor shall not be required to make any advance in respect of any 'house, unless such house, exclusive of the value of the land, shall be equal in value to double the amount of the sums, if any, then advanced thereon, and of the sum or sums so re- FORMS. 965 quired to be advanced. Application for each advance shall be made not less than days before the same is payable. 8. The purchaser shall, at his own expense, insure the build- ings to be erected on said land, and any building materials for the time being thereon, for the benefit and security of the vendor, in a sum or sums equal in amount to any advances made by rea- son of this agreement. 9. The vendor shall have a lien or charge upon said land and all the buildings for the time being erected, or in the course of erection thereon, and upon all the building materials, and other things, which shall, for the time being, be brought upon the said land, or the streets and passageways adjoining the same, as well for the said purchase money and the said interest thereon, as also for such sums of money as the vendor may have advanced or paid as herein provided. 10. When, and as soon as, the purchaser shall have paid to the vendor the purchase money of said land, or any house-lot of the same, together with all sums of money advanced or paid by the vendor in respect to any building or buildings thereon, by reason of this agreement, the vendor shall execute and prepare a conveyance of said land or house-lot, and such deed shall contain covenants on the part of the purchaser, his heirs, executors, ad- ministrators and assigns, with the vendor, his heirs and assigns, that no building which shall be erected upon said piece of land shall be used for the purpose of carrying on any trade, business or manufacture, or for any purpose which may be or become a nuisance or annoyance to the neighborhood, and that an area of the depth of feet from street aforesaid shall, at all times hereafter, be left open and unbuilt upon, except that bay-windows may project over the same not more than feet from the house to which they belong, and also that the purchaser, his heirs or assigns, will, from time to time, pay one-half of the expense of keeping in repair so much of the passage-way as is co-extensive with the said piece or lot of land. 11. The purchaser shall be entitled to have said pieces of land conveyed to him by several conveyances, not exceeding the num- ber of house-lots into which said land may be divided, upon pay- ment to the vendor on account of said purchase money, of the sum of for each of land to be comprised in such con- 966 AMERICAN LAW REAL ESTATE AGENCY. veyance, with interest thereon as aforesaid, and the advances made by the vendor in respect of the buildings erected on the land to be comprised in such conveyance, with interest as aforesaid, and all sums paid for insurance, and the interest due in respect thereof, provided that the purchaser shall not, at any time, re- quire a conveyance of part of the said land, under this clause, unless at the time of such conveyance, he shall have proceeded with the erection of at least houses on the land remaining, and shall have complied in all respects with the provisions herein contained. 12. If default shall be made by the purchaser in the observ- ance and performance on his part of this agreement, in any par- ticular, and time shall be deemed to be of the essence of the con- tract, or if the purchaser shall become bankrupt, or make any composition with or any assignment for the benefit of his cred- itors, then, and in such case, it shall be lawful for the vendor to re-enter upon said land, or any part thereof not previously con- veyed to the purchaser, and by notice, in writing to be delivered to the purchaser, or left for him at his usual and last-known place of abode, absolutely to determine this agreement, so far as relates to such portions of said land as may not previously have been con- veyed to the purchaser. 13. If the present agreement shall be determined by the vendor under the preceding clause, so much of the land as shall not have been conveyed to the purchaser by reason of this agreement, to- gether with the buildings thereon, and all building materials which, under the previous clauses of this agreement, are provided to be used and applied to the said land or the buildings thereon, shall immediately, after the delivery of the notice to determine this agreement, be and remain the absolute property of the vendor, free and discharged from all claims and demands of the purchaser in respect thereof, or otherwise, on account of this agreement, and the purchaser shall thenceforth be free and discharged from all obligations created by this agreement, and which then remain unperformed. In witness whereof, etc. FORMS. 967 No. 33 Agreement for Exchange of Real Estate This agreement made and entered into this day of , 19 , by and between , party of the first part, and , party of the second part, witnessefh : That for and in consideration of their mutual agreements here- inafter stated, the said parties have agreed and do hereby agree as follows, to- wit: First. The party of the first part has this day sold to the party of the second part the following described real estate (give full description), and will, within days from this date, de- liver to the party of the second part, abstract of title covering all' of said land, showing title clear and free from incumbrances. Second. The party of the second part has this day sold to the party of the first part the following described land (give full de- scription), with an incumbrance of dollars, and one lot in the city of , with an incumbrance of dollars, and two lots in the city of , both free of incumbrances, and will, within days, deliver to the party of the first part, abstract of title, showing title free and clear of all incumbrances, except as above indicated. Third. The party of the second part shall execute and deliver to the party of the first part, one promissory note for the sum of dollars, due in year. . from the date of closing the deal, bearing interest at the rate of per cent, per an- num, and payable annually, and will secure the same by mortgage on the land purchased under this agreement from the party of the first part. Fourth. The party of the first part will assume and agree to pay the mortgages on the land and lots purchased under this agreement from the party of the second part. In witness whereof, etc. 968 AMERICAN LAW EEAL ESTATE AGENCY. No. 34 Agreement for the Sale of Standing Timber Agreement made the day of , 19...., between , of , hereinafter called the vendor, and , of , hereinafter called the purchaser. The vendor will sell and the purchaser will buy the timber- trees growing on a certain lot of land situate at the northeasterly corner of the vendor's farm, in the township of , in county, the said lot containing about acres, and being the same pointed out by the vendor to the purchaser. The purchase price for the timber and trees is dollars, of which one-half part shall be paid on the signing of this agreement, and the bal- ance on the day of , 19 Such trees shall be felled with as much care as possible to avoid injury to fences and to the undergrowth of trees not cut by the purchaser. The purchaser shall make proper compensation to the vendor for all damages the vendor may sustain by the care- lessness or negligence of the purchaser's workmen. The purchaser shall not enter into any arable fields or upon any grass land until after the crops have been gathered; and the timber is to be re- moved over such private roads as the vendor, or his agent, shall point out. The whole of the timber and trees shall be cut down before the day of , 19 , and shall be clear off the premises before the day of , 19. . . ., excepting that the cord- wood may remain until the day of following ; everything remaining after the times mentioned shall be forfeited to the vendor. In witness whereof, etc. No. 35 Agreement for the Sale of Crop of Grass Agreement made the day of , 19 between , of , hereinafter called the vendor, and , of , hereinafter called the purchaser. It is agreed as follows: 1. The vendor will sell and the purchaser will buy all the FOEMS. 969 standing crop of grass growing on the vendor's farm, situate at , in the county of and State of The part of the farm covered by mowing grass is believed and is hereby conclusively estimated to contain acres. 2. The price to be paid is dollars per acre, of which one-half shall be paid on the signing of this agreement, and the balance as soon as the grass shall be cut and before it is removed, and the removal of the hay from the farm shall not be later than the day of , 19 3. For the purpose of mowing, making and carrying away the hay, the purchaser shall have license to enter upon the hay- fields with workmen, machines, wagons or other vehicles, and all necessary implements, but not later than the said day of , 19. . . . ; the purchaser agreeing not to permit any injury to the fences, gates or trees, and to make compensation for any such damage. In witness whereof, etc. No. 36 Agreement for the Sale of a Growing Crop of Fruit Agreement made the day of , 19 , between , hereinafter called the vendor, and , hereinafter called the purchaser. The vendor will sell and the purchaser will buy all that crop of apples growing on the trees of the vendor's orchard, situate at , in the county of , for the price of per bushel, of which the sum of dollars shall be paid before any part of the crop is gathered, and the purchaser shall not be at liberty, without the consent of the vendor, to remove from the premises any part of the crop not paid for, until the purchase price thereof is paid. The fruit shall be gathered when sufficiently matured for gathering, and the purchaser and his workmen shall have, for the purpose of gathering and taking the fruit, full lib- erty to enter upon the said orchard and trees with ladders and other necessary appliances. In witness whereof, etc. INDEX. [References are to sections.] Abandonment of employment, 292, 761b, 1078d. Abandonment by purchaser of contract of purchase, 292. of negotiations a question for jury, 867a, 923. Abatement of price, 315. Abbreviations, 18, 48. Abstracts of title. See TITLE. Acceptance of service, 646. Acceptances, 567, 614a. Accord and satisfaction, 562. Accounting, 329a, 404, 404a, 421a, 559, 630, 676. Acquiescence, 143, 450, 515a, 560, 618, 860b. See also WAIVES. Actions for commissions, 184, 210, 218, 236, 588, 630, 632a, 633a, 641a, 649b, 650, 653a, 656b, 656c, 656d, 692a, 730a. for breach of contract, 563. of tort, 40, 79d, 414. by purchaser against vendor, 40. of assumpsit, 629, 572. between principals and agents, 630. Act which broker cannot sub-delegate, 5. to dispossess, and what purchaser may show in defense. 689a. See also PETITIONS. For DAMAGES, see 299. Administrators and executors, 5, 34, 198, 280, 456, 557. Advances, 282, 290, 291, 295, 314, 565. Adverse interests. See INTERESTS, ADVEBSE. Advertising and advertisements, 20, 24, 30, 37, 128, 561, 605, 733a, 733, 963. Advice of third party immaterial, 809b. as to liability made by broker erroneous, 529. Afterthought, as to whether defense was, a question for jury, 920a. Agency, general and special, 6, 356. several instances of special do not make a general, 6. duration of, 14. exclusive, 13, 22, 42, 328c, 439, 563, 897, 1084. termination of the, 15, 137, 314, 454, 1031. 971 972 INDEX. [References are to sections.] Agency, agreement of, 1107. after death, single letter insufficient to establish, 46. contract to take as commission excess over net price an, 82. exercise of option revokes contract of, 89. not affected by agent taking title bond, 99. established by correspondence, 17, 738. contract of and not an option, 1083. may be withdrawn by parol, 22. act constituting breach of contract of, 259a. broker not entitled to commission on bonds sold to his customer after end of, 277b. specific supersedes indefinite contract of, 492a. statement by owner to broker after sale not enough to establish, 712d. Agent or agents. See also BBOKEB. who are capable of becoming, 1. power of delegating authority, 2, 987. inherent power of becoming, 3. personal acts of undelegatable, 4. acts that cannot be sub-delegated, 5, 26. special and general, 6, 356. who are deemed brokers, 7. who are not brokers, 8. without authority to employ a broker to sell, 11. exclusive employment as, 13, 61. authority conferred on, 18. revocation of authority granted to, 22. how deeds should be executed by, 58. principals and, 34, 36, 51. of insurance company, broker obtaining loan from not, 71. signature of principal by, 74, 75, 76. of owner, when telegraph company is not, 80. of seller, broker who took option to buy is not, 88. taking title bond does not affect agency, 99. styling himself agent for others bound himself, 168 acts governed by rules applicable to trustees, 311. of both parties, middleman is common, 578. when principal liable for acts of insane, 347a. distinguished from broker, 3a option holder not necessarily an, 104a. broker entitled to commission for sale to agent of another, 165a. of seller joining with purchaser of land, latter liable for profits made, 329a. owner not liable to others his agent appoints, 370a. to rent and care for land, may purchase it, 381a. when without implied power to appoint a sub, 394a. INDEX. 973 [References are to sections.] Agent or agents Continued. owner bound by his representations to buyer of location of land, 45 la. contract between him and sub need not be in writing, 523a. estoppel by act of, 848a. Agreement to sell, a mere option, 90. Alabama, contracts for the sale of lands must be in writing, 790. Alterations in written instruments, 55, 73, 175, 293, 314, 485, 1010, 1039, 1111. Ambiguous contracts, 49. Amendments, 111, 667-674, 880a. Apportionment, 453, 1116. Appraise, broker entitled to commission on principal's refusing to, 434. Appropriation of broker's services, 24. of benefits ratifies, 24, 216. Approval, contract of sale subject to principal's, 47. when silence equivalent to, 24. Arbitrarily refusing to accept lease, 197. Architects, 31, 770, 1027. Arkansas, contract for sale of lands must be in writing, 79b. Assignees and assignments, 28, 290, 572, 745, 817. Assist, sub-agent so employed entitled to commission, regardless of value of service, 397b. Assumpsit. See ACTION OP. Attachment, levy of by broker defeated commissions, 454. Attendance at public sale, 41. Attorney in fact, 27, 76, 905. at law, 18, 29, 251, 314. Auctioneer, agreement with to sell need not be written, 605. Auctions and auctioneers, 30, 42, 138, 305, 576, 972. Authority, power of delegating, 2. involving discretion undelegatable, 5. conferred on brokers and agents, 10, 18, 239, 255. agent cannot bind principal by employing broker to sell without, 11. revocation of, 22, 57. to two or more to do act, all must unite, 26. broker cannot effect a sale without, 18, 127. deed ineffectual to set aside, 57. to sell, advertisement on land ineffectual to imply, 18, 128. to find purchaser gives no right to sell, 129. sale at $500, after asking lower terms, without, 135. sale by broker without written upheld, 140. power to do all things concerning real estate confers power to lease, 205. contracts in excess of, 307, 307a, 307b, 307c, 314, 392b, 40, 458, 1060. to village to sell bonds includes to employ broker, 281. 974 INDEX. [References are to sections.] Authority, power of delegating Continued. of broker, improvement of property beyond, 324. broker to sell cannot license to cut timber, 330. to locate and survey, not power to sell, 339. of agent construed to sell, but not to convey, 337a. broker to make written cannot make oral contract, 365. broker not entitled to commission on contract not conforming with his instructions, 363a. broker under oral cannot bind by written covenant, 364. of agent presumed from undisputed possession for years, 366. to make repairs does not warrant permanent improvements, 372. to collect rent cannot employ broker to sell, 381. sub-agent exceeding bars commissions, 392. broker selling lower than bars commissions, 408. terms of cannot be varied, 409. half-cash complied with by sale for all, 410. half -cash and remainder on time, cannot sell for all cash, 410a. negotiations of broker without not ratified by sale, 415. to sell for a fixed sum binding, 422. to sell for specified sum is for cash only, 422a. broker entitled to commissions, though principal paid more than he expected, 505. if revocable, broker finding after not entitled to commissions, 516. revocation of entitles sub-agent to commissions on sale made after, 521. to sell not implied by broker putting advertisement on land, 561. of broker to require owner to furnish abstract of title, 597. when contract must be in writing, without unenforceable, 602. Authority, of broker a question for the jury^ 1019. of broker to sell plantation, 1124. Avoid a contract, issue must be presented by pleadings, 871a. B Banks, 50, 244, 328p, 449, 465. Belief of evidence, instruction to jury ignoring erroneous, 949, 1038. Beneficiaries, broker can not charge commissions to, 442. Benefits, principal receiving bound by fraud of agent, 315. principal receiving ratifies, 557. Betrayal of trust, 295. Bidders, 41, 217, 395, 441. Bonds, 38, 276, 277, 277a, 277b, 278, 279, 280, 281, 328 (o), 558, 574, 652. Books, 763. Boot, exchange for a certain amount to, 185. Borrower, 243, 256, 257a, 328, 566, 630, 787. INDEX. 975 [References are to sections. ] Bound, broker by first charge for commissions, and can not increase, 211. principal accepting valuation made by buyer, 416. by election, broker to look to purchaser for commissions, 425. each purchaser for whole commission unless mistake pleaded, 579. owner by legitimate effect of language than his understanding of it 416a. Breach of contract, 563. Broker. See also AGENT. he cannot delegate certain acts to another, 5. who is so termed, 7 who is not a t 8. how appointed, 10. employment of and limitations, 12. to be assured compensation must have contract, 12. exclusive appointment as, 13. authority conferred upon, 18. acting openly and buying vendor's property, 40. has a right to give part of commission to purchaser, 41. owner not required to inform of restrictive covenant, 43. not agent of insurance company in securing loan, 71. may be authorized 1 by parol to sell or lease real estate, 79a. sending telegram,, company not agent thereby, 80. to secure option, entitled to reasonable commission, 83. employed to sell, securing mere option, 85. finding purchaser entitled to compensation, 84. entitled to commission when customer exercises option, 86. entitled to commission-, though principal held only option, 87. who took option to buy, not agent to sell, 88. who sold under an option not entitled to commission, 92. to procure loan, not entitled to commission for option, 93. to secure two options, principal rescinds one, liable for breach, 102. not entitled to commission for unexercised option, 101. not entitled to commission for securing part of options, 103. obtaining price from owner, a naked option, 104. given option acting as a purchaser, 105. given option, owner estopped to claim purchaser, 107. effecting a sale entitled to commission, 113. entitled to more commission when price increased, 115. not entitled to commission for nominal sale, 116. entitled to commission, though sale enjoined, 118, 469. must effect a sale to earn commission, 119. entitled to commission on withdrawal of land from sale, 120. not entitled to commission when sale fails by no fault of principal, 122. not entitled to commission for sale by wrong description, 123. not entitled to commission for forced sale with joint owner, 125. selling to resell not guilty of fraud, 126. 976 INDEX. [References are to sections.] Broker Continued. without authority cannot effect a sale, 127. placing advertisement on land does not imply right to sell, 128. authority to find purchaser none to make sale, 129. buying at inadequate price by fraud, sale set aside, 130. becoming purchaser unknown to principal sale set aside, 131. contract to pay commission on effortless sale upheld, 132. may be required to make sale to earn commission, 133, 136. selling for less than authorized not entitled to commission, 134. selling for $1,500, after asking lower terms, unauthorized, 135. sale by one of rival, ends contract with others, 137. whether entitled to commission for both auction and private sale a question for the jury, 138. selling property acquired from principal liable for profit, 139. authorized to sell without written authority, 140. second selling to client of first, latter not entitled to commission, 141. sale by owner before sale by bars commission, 142. acquiescence in disagreement bars commission, 143. selling for cash on execution of deed, 144. selling contract of sale entitled to commission, 145. to recover commission for sale of public land must show what, 146. failing to sell customer, owner succeeding, broker not entitled to commission, 148. effecting an exchange entitled to commission, 150. effecting exchange, though other property substituted, entitled to commission, 151. entitled to commission where principal receives good title in exchange, 152. must show customer able to make exchange to earn commission, 153. to recover commission for exchange failing by defect in title must show good faith, 156. does not earn commission by irresponsible customer to exchange, 157. without employment not entitled to commission for exchange, 162. commission paid broker may be recovered from party in default, 163. not liable for misrepresentation made in good faith, 165. employed by opposite party, error to prevent defendant showing, 166. who did nothing, owner making exchange, not entitled to commission, 169. entitled to commission where exchange wrongfully broken off by principal, 170. for commission, has no interest or title in properties exchanged, 172. when ofler to pay does not show employment of, 173. agreement to wait for earned commission without consideration, 174. effecting exchange entitled to commission, though terms changed by parties, 175. not entitled to commission where exchange defeated by lease, 177. interfering not entitled to commission for effecting exchange, 178. INDEX. 977 [References are to sections.] Broker Continued. not entitled to commission where exchange defeated by failure to furnish abstract of title, 179. entitled to commission when purchaser can give title to properly in exchange, 180. not entitled to commission for mistake in describing property, 181. not entitled to commission on failure of conditional agreement, 182. not entitled to commission where misrepresentation defeated exchange, 183. effecting exchange for amount to boot, entitled to commission on whole value, 185. entitled to commission on effecting binding contract of exchange, 186. entitled to commission on producing one willing to exchange, 188. failing to consummate exchange, proof necessary to recover commission, 189. earns commission when both parties agree on terms of exchange, 191. right to commission not affected by failure of one party to perform, 192. right to commission defeated by failure to secure transfers in exchange, 193. not entitled to commission where party shows bad faith, 195. value of services of in negotiating leases, 196. right to commission for negotiating lease, what does not defeat, 197. to sell securing contract to lease does not earn commission, 198. charge properly refused that no leases are made without, 201. of lessee secretly securing renewal to himself, holds as trustee, 203. entitled to commission for securing lessee, 204. to earn commission must negotiate lease his principal can perform, 204a. securing tenant's waiver of privilege of renewal binds principal, 208. employed to collect rents, not entitled to commission for securing lease, 207. for tenant has no claim on lessor for commission, 208. to secure lessee not entitled to commission for option, 209. in action by for commission, owner can show lease to another, 210. bound by first claim for commission and cannot increase amount, 211. securing lease for five years, sale at second, loses remaining commission, 212. oral assent to subletting unavailing where forbidden, 213. contract with ended, lease by owner, not entitled to commission, 214. bringing about a sale or lease entitled to commission, 215, 491. not entitled to commission where sale of lease frustrated by lessor, 216. not entitled to commission where lessor refused to make lease, 216a. not entitled to commission where lease to highest bidder, and broker preventing, 217. to secure lease for eight years, must do so to earn commission, 220. secret understanding of with tenant does not affect principal, 221. 978 INDEX. [References are to sections.] Broker Continued. one employing to obtain loan liable for commission, 222. to be paid commission from proceeds, not entitled where loan refused for bad title, 223. does not earn commission where lender refused to consummate loan, 224. not entitled to commission for securing conditional loan, 225. to recover commission for loan must show on same terms, 226. held entitled to commission for procuring loan, 226a. reasonable value of services in procuring loan may be shown, 228. liable for loss of loan on insufficient security, 229. bound to make good money lost through his negligence, 230, 349. for seller obtaining loan to buyer, not entitled to commission from latter, 232. procuring loan for less accepted, entitled to commission, 233, 429. entitled to commission on finding lender, 234, 632d. barred commission for not reporting loan, 235, 431. in action for commission not necessary to prove tender, 236. agency in making loan, 237. release of judgment by, 238. authority to provide mortgage for loan confined to land designated, 239. entitled to commission where lender refused after principal, cured defect in title, to make loan, 240. charging more, entitled to statutory commission for loan, 241. entitled to commission for procuring loan, though principal refused to take, 242. to whom borrower paid commission his agent, 243. not agent of lender by money in bank subject to his check, 244. not entitled to commission where owner himself secures loan, 245. failing to secure *oan, principal securing from same party, bars com- mission, 247. to examine title and secure loan, barred commission on failure by defect in title, 248. losing loan through wrong dimensions bars commission, 249. error to grant judgment for full commission where loan fails, 250. verdict for procuring loan set aside, 252. loan to purchaser on other property, makes seller's his agent, 254. agreement as to commission for procuring lease question for jury, 253. to procure loan not authorized to collect principal or interest, 255. held agent of lender and not af borrower, 256. knowledge as to mortgage binding on principal, 258. selling under power in mortgage, need not inform mortgagor, 259. liable for loss in failing to record mortgage, 260, 349. liable for loss from unpaid mortgage, 261. not entitled to charge foreclosures to principal, 262. to invest money confined to first mortgages, 264. INDEX. 979 [References are to sections.] Broker Continued. making loan, knowing of prior mortgage, principal's subordinated thereto, 265. whether taking mortgage with wrong description guilty of negligence, a question for the jury, 267. mortgage, taken by lender bound by fraud of, 268. payment on mortgage to seller's broker, did not bind mortgagee, 269. liable for negligence in failing to learn liability under mortgage, 270, 349. liable for loss in taking mortgage on other and not on land sold, 271, 349. securing conditional sale of mortgage, not consummated, not entitled to commission, 272. fraud of in appropriating money to pay off mortgages 273, 314. failure of purchaser to execute mortgage, barred commission, 274, 556. deprived of commission when bonds declared illegal, 276. selling bonds entitled to commission on procuring buyer on terms pre- scribed, 277. not entitled to commission on sale of bonds on buyer withdrawing, 278. delivering bends without disclosing principal liable if void, 279. selling bonds in good faith not liable to trust estate because sale illegal, 280. authority to village to sell bonds, includes authority to employ, 281. has lien on securities in his hands for commission, 283. has lien for fees on funds in hands to loan, 284. in absence of contract has no lien on funds or securities of principal, 285. where has lien, it exists only so long as ha holds property, 286. lien confined to securities affected, 287. has no lien for loan on trust estate, 288. taking excess for fee, releasing lien falls on principal, 289. duty of to employer and others, 290. concealment and its effect upon rights, 291. conduct of, 302. making contract in excess of authority binds himself, 307, 307b. failure of to report offer, 312. false representations, 313. fraud of agent against principal, 314. fraud of agent against third persons, 315. fraud of principal against agent, 317. fraud of third persons against agent, 318. debatable acts not constituting fraud, 320. selling his own property to principal set aside, 321. when he is and when not liable for interest, 322. obtaining interest hostile to principal, 323, 382. improvement of property beyond authority of, 324. neglecting to place insurance on property liable, 325. selling without express agreement, entitled to commission, 328m. to sell cannot grant license to cut timber, 330. 980 INDEX. [References are to sections.] Broker Continued. authority construed to contract to sell but not to convey, 337a. buying land-warrants liable for value of land, 338. not liable for mutual mistake as to power, 341. to sell can take nothing but money, 342. has no right to receive Mexican money, 343. when he need not tell principal what land sold for, 344. knowing defect in principal's title, cannot himself acquire, 345. guilty of negligence barred commission, 346. contract of brokerage not set aside for fraud, 348. departing from instructions, liable, 350. when not liable for loss on forged note, 351. when not authorized to collect note, 352. having note, maker may pay him, 353. has no power to receive payments on note before due, 354. to collect interest, has no power to collect principal, 355. doing all business for principal may collect note 356. debtor should see that broker has security, 357. for revocation, no sale made, entitled to nominal damages, 358. how notice to bind principal must be given, 359. on finding customer to buy, must give principal notice, 360. to make a written cannot make oral contract, 363. not entitled to commission for contract not conformable to authority, 363a. under oral authority, cannot bind by written covenants, 364. entitled to commission where purchaser postpones purchase, 365. advancing the consideration takes deed absolutely, 368. principal taking land in lieu of cash, broker entitled to commission, 369, 376. when principal paying one, not further liable, 370. pool to divide commission between brokers bars commission, 371. to make repairs, has no power to make permanent improvements, 372. cannot retain commission from purchase money, 373. vendor refusing to sell liable for commission, 374. vendor refusing to sell, when broker not entitled to commission, 375. refused land for commission, may take cash, 377. when not entitled to commission in cash, 378. release by one, left other entitled to half of remaining land, 379. release of vendee did not deprive broker of commission, 380. to collect rent not authorized to employ broker to sell, 381. acting in bad faith, required to refund commission, 323, 382. receipt by, signed as agent, binds individually, 383. giving receipt in name of principal, purchaser must look to latter, 384, 642b. giving receipt in name of principal, when may be sued for money, 642c. when receipt given in name of principal purchaser may recall money, 385. INDEX. 981 [References are to sections.] Broker Continued. to collect rent, cannot pay therefrom debt of principal, 386. to collect rent must apply proceeds as directed by principal, 387. acting in interest of others, not entitled to share in transaction for principal, 388. buying property, not entitled to commission for its sale, 389, 389a, 389b, 389c. liable for fraud of sub-agent, 390. deprived of commission by concealment of sub-agent, 391. sub-agent exceeding authority defeats commission, 392. principal not liable to suteagent, 393. not liable for poor sale by sub-agent, 394. sub-agent entitled to one-half commission, 396. contract with sub-agent binding, when, 397. one employing liable for commission, 398. secretly learning price, etc., does not earn commission, 399. secretly representing both parties bars commission, 400. vendor acts in bad faith by paying commission to purchaser's broker, 401. required to exercise skill of calling, 402. may be responsible for sufficiency of security, 403. must account to principal for money received, 404. for seller, member of purchasing syndicate, bars commission, 405. giving names of syndicate, when sale by owner bars commission, 406. tenants in common jointly liable for commission, 407. selling lower than authorized bars commission, 408. cannot vary terms of authority, 409. selling for all cash complies with authority for half-cash, 410. to sell for half-cash and time, cannot sell for all cash, 410 understating price obtainable liable to principal for loss, 412a. fraudulent acts of may give rise to action of tort, 414. unauthorized negotiations not ratified by sale by owner, 415. accepting valuation from buyer binds principal, 416. presumption after revocation that he acts for purchaser, 421. entitled to commission on quantity contracted for, 423, 423a interfering . in another's transaction, 424. agreeing to look to purchaser for commission, 425. to purchase not entitled to commission from seller, 425a. not entitled to commission for sale at less than fixed price, 426. not entitled to commission as contract not a lease, 427. not deprived of commission for immaterial variance in description, 428, 428a. to procure loan entitled to commission on finding lender, 430. negotiating with two, sale to one bars commission, 432. not entitled to commission when sale void by statute, 433. entitled to commission where principal refuses to appraise, 434. purchaser who knew length of lot barred commission of, 435. 982 INDEX. [References are to sections.] Broker Continued. where vendor repudiates tender not necessary, 430. unsuccessful with F., owner selling to him and others bars commission, 437. not entitled to commission where party to execute does not show good faith, 438. unless exclusive not entitled to commission on sale by another, 439. entitled on sale by owner to commission on share of two tenants in common, 440. preventing competitive bidding not entitled to commission, 441. in not charge commissions to beneficiaries, 442. lerfering with negotiations of another, 444. iirst who succeeds is entitled to commission, 445. who was procuring cause of sale entitled to commission, 446, 447. effect upon right to commission by break in continuity, 447. effect upon right to commission by break in sequence, 448. not entitled to commission on sale by principal uninfluenced by broker, 454. excess in price as compensation, 456. failure to sell, 457, 543. failure to consummate contract of sale, 458. entitled to commission in stock of insurance company, 468. not entitled to full commission until price paid, 470. not informing principal of customer defeats commission, 471. knowledge by that principal owns part does not defeat commission, 472 litigation by third parties does not defeat commission, 473. methods of earning commission by, 474. not required to prepare contract of purchase, 474a. as middleman may recover from each party, 475. not entitled to commission for sale of mines not within the descrip- tion, 476. modification not assented to by does not defeat commission, 477. modification in his presence did not affect right to commission, 478. modification by performing other services modifies right to commission. 479. agreeng to take stock for commission can not recover 'in money, 480. does not take excess on net price to owner, 481. selling at net price not entitled to commission, 482. entitled to commission on note for excess, on default of vendor, 483. entitled to excess as commission from first payment, 484. when owner changed gross to net price, liable for commission, 485. commissions computed on actual sum received, 486. commissions not defeated because nominal is not the real purchaser, 487. entitled to commission where failure not caused by his fault, 488. INDEX. 983 [References are to sections.] Broker Continued. whether neither principal nor broker effecting sale knew of another's negotiations latter barred commission, 489. entitled to commission where principal sells before time expires, 490 reporting offer of $16,000 instead of $15,000 did not deprive of com- mission, 491. oral followed by written contract to sell land entitled to commission, 492. entitled to commission for sale of four houses, not entitled to proper' tionate for one, 493. entitled to commission for sale of lots, not entitled to same rate for large body of land, 494. nromised commission for selling part, entitled to same rate for all, 495. who failed to sell all entitled to commission on sale by owner of part to customer, 496. share of profits on sale through sub-agent, 497. commission payable on sale and not on collection of deferred pay- ments, 498. 'V ; commission due when contract made with produced purchaser, 499. entitled to commission on actual payments by defaulting vendee, 500, 506. limited to commission on $1,000, though property later sold for $12,500, -500a. right to commission not defeated because to be paid from purchase money, 501. principal liable for commission on sale at lower price, unless fixed required, 502. where principal agreed to pay on receipt of price, not entitled be- fore, 503. commission usually payable on completion of transaction, 604. entitled to commission though purchaser pays more than he au- thorized, 505. cases in which held not procuring cause of sale, 507. entitled to commission where sale frustrated through failure to par- tition, 508. partial performance entitled neither to commission nor on a quantum meruit. 509. in charge of real estate securing tenant entitled to recover on quan* turn meruit, 510. on principal selling for less than agreed price, entitled to recover on a quantum meruit, 511, 512. in absence of express contract broker procuring purchaser may recover on a quantum meruit, 513. in absence of fixed rate measure of commission value of service rendered, 513a. demand of $10,000 to release lien defeated claim for commission, 514. 984 INDEX. [References are to sections.] Broker Continued. first entitled to commission by second's relinquishment, 516. if authority to secure purchaser revocable, finding after bars com- mission, 516. if customer reserves right to withdraw if title bad, when exercised bars commission, 517, 534. unless exclusive rival not entitled to commission on sale by another, 518. and sub-agent similar in relations to principal and agent, 519. sub-agent entitled to share of commission though he violated instruc- tions, 520. liable to sub-agent though property on sale found not to belong to vendor, 520a. sub-agent entitled to commission for sale made after revocation of authority, 521. sub-agent not entitled to commission for sale at reduced price, 524. sub-agent entitled to commission though he failed to give name of purchaser, 525. selling to railroad instead of to syndicate, entitled to commission, 526. entitled to commission though sale other than contemplated, 527. right to commission not affected by owner's suppositions, 528. erroneous advice as to liability defeated right to commission, 529. failing to name purchaser in telegram does not defeat commission, 530. where vendor sought to vary terms and purchaser refused to take, broker entitled to commission, 531. entitled to commission on bringing parties together, though they contract on different terms, 532. on making sale, defect in title does not deprive of commission, 533. to have part of profit, on sale failing by defect in title not entitled to commission, 535. payment of commission to, may depend on transfer of title, 536. not entitled to commission where sale defeated by supposed defect in title, 537. entitled to commission on producing buyer, whether principal or another holds title, 538. sale defeated by want of title, which he knew, not entitled to com- mission, 539. ignorance of contract by holder of record title did not defeat right to commission, 540. where sale failed by dispute over taxes barred commission, 541. entitled to commission where sale failed after memorandum contract signed, 542. not entitled to commission for unavailing efforts to make a sale, 543. to entitle to commission for sale negotiations must be uninterrupted, 544. undisclosed agreement to divide commission with purchaser does not bar commission, 545. INDEX. 985 [References are to sections.] Broker Continued, not entitled to commission until he has performed his undertaking, 546. not entitled to commission for procuring contract subject to unau- thorized condition, 547. procuring purchaser for vested remainder on different terms barred commission, 548. does not earn commission if contract void if first payment fails, 549. variance in name of ranch sold did not bar commission, 550. not entitled to commission for contract too vague to enforce, 551. withdrawal of land from sale entitled by contract to commission, 552. withdrawal and sale by owner to customer in good faith bars commis- sion, 553. principal paying commission to broker before purchaser withdrawing can not recover amount, 554. entitled to commission where sale failed because rights of two heirs not acquired, 555. circumstances under which he earns commission, 557. circumstances under which he does not earn commission, 558. who acquiesced in reduction of price, commission computed on price received, 560. may be the common agent of both parties, 578. acting as a mere middleman, 578. when principal employing several may remain neutral as to claims of, 581. parol contract binds unnamed principal, 583. to share in profits of sales not a partner, 584. has right of action against defaulting purchaser for lost commission, 588. has right of action against vendee for price paid for property, 588a. to measure land does not sustain claim for selling, 594. taking title to land, principal may tender amount and demand ded, 595. when not necessary to show vendor had a clear title, 596. without authority to require owner to furnish abstract of title, 597. presumed to have contracted with reference to usage, 599. where authority must be in writing, contract without unenforceable, 602. can not recover commission when contract unenforceable, 603. contract by unlicensed unenforceable, 604. employment continues for a reasonable time, 612, 613. principal admitting sales, entitled to reasonable commission, 615a. to recover commission on principal refusing purchaser tender not nec- essary, 625. reasonable time immaterial when purchaser found while employed, 614. in absence of express agreement reasonable value of services may be recovered, 615. 986 INDEX. [References are to sections.) Broker Continued. not necessary to put principal in default before suing for fees, 617. ratification by acceptance of offer made to, 619. ratification cures defect in agent's appointment, 620. ratification of appointment by principal executing contract with pur- chaser, 621. ratification of appointment by acceptance of proceeds, 622. where evidence shows sale for less than claimed defendant can not object, 627. must account to principal for excess withheld, 630. not liable to principal for money refunded to purchaser on rejected sale, 642a. contract of, construed as promise to pay price if not sold, 1089. Broker distinguished from agent, 3a. employed to purchase must secure one able to convey free from in- cumbrances, 12. right to commission fixed on sale, and can not be postponed without his sanction, 12. when counter-offer defeated contract of employment, 12. owner fixing price and describing land not enough to constitute em- ployment, 12. when duplicity did not make him agent of other party, 12. mere listing distinguished from exclusive contract, 12. when contract for indefinite term not created, 12. owner not liable for commission on sale after end of agency, 13. acceptance of exclusive contract and services supply mutuality, 13. acting on unsigned contract made exclusive one binding, 13. when entitled to commission whether sale by himself or others, 13. when not so entitled, 13. when sale by owner to customer barred commission, 13. what terms fixed the duration of right to sell, 14. when dissolution of firm does not end agency, 15. sale at auction not a breach of agency contract, 15. when not entitled to commission for sale of syndicate, 15. principal liable for commission on sale to unknown customer, 15. where he places principal in touch with customer, entitled to com- mission, 15. when party not liable on sale of mill for commission, 17. contract of employment created by letters, 17. special contract supersedes rule as to employment, 17. when contract silent, authority to sell means for cash, 18. unless specially authorized seller not required to send deed to bank, 18. when unauthorized to sell principal could repudiate act, 18. parties dealing with bound to learn limit of authority, 18. INDEX. 987 [References are to sections.] Broker Continued. unauthorized to make representations which confer easements, 18. when unauthorized to bind principal to sell, 18. when exceeds conferred authority, 18. authority generally strictly construed, 18. when principal could not object to his signing contract for pur- chaser, 18. when sub-agent may state price asked is the lowest, 18. communicating offer to buy at lower price did not revoke agency, 22. when right to commission is contingent on consummation of sale, 25. when his misrepresentation not chargeable to principal, 36. when knowledge not acquired while acting for principal, 36. not entitled to commission on sale made after appointment of re- ceiver, 62a. entitled to commission on sale of land for fellow-broker, 76a. entitled to commission though customer to exchange defaults, 87a. given option may sell for more and not account, 105a. to sell not entitled to commission after principal gives option, 108a. to sell unauthorized to convey, etc., 112a. entitled to commission for aiding in making sale, 113a. entitled to commission for selling for more cash than required, 113b. entitled to commission for sale to different person, 113c. to sell must effect or secure binding contract, 113d. entitled to commission on sale by owner to customer, 142a, 399a. to effect exchange must act in good faith, 156a. to earn commission must produce one willing to exchange, 157a. entitled to commission for exchange with agent of another, 165a. not entitled to commission when party to exchange irresponsible, 165b. introduction not enough to earn commission, 169a. barred commission when he fraudulently altered contract, 175a. entitled to commission for exchange defeated by failure to pay off lien, 177a. not entitled to commission where party to exchange lacked title to land, 180a. not entitled to commission for exchange where wife did not join, 183a. entitled to commission for fairly securing agreement for exchange, 186a. entitled to commission though contract for exchange oral, 191a. not entitled to commission where liquidated damages fixed for breach, 195a. entitled to commission from both parties to an exchange, 195b. not entitled to commission for exchange defeated by flaw in title, 195c. 988 INDEX. [References are to sections.] Broker Continued. not entitled to commission for sale to customer procured to lease, 198a. entitled to commission on withdrawing as party to lease, 203a. barred commission when lease was not renewed, 206a. entitled to commission although tenant defaulted, 207a. not entitled to commission as lease to another not renewal, 212a. not entitled to commission where owner and tenant made lease, 214a. not entitled to commission where building burnt before lease signed, 216b. entitled to commission where lease failed, husband not signing, 216c. not entitled to commission where lessee failed to give security, 216d. entitled to commission on furnishing satisfactory tenant, 22 la. entitled to commission though co-lessee joined in making, 221b. entitled to commission on acceptance of lease by owner's lawyer, 221c. entitled to commission though lease obtained in violation of instruc- tions, 22 Id. not entitled to any part of commission paid other broker for lease. 221e. not entitled to commission for irresponsible lessee, 221 f. required to supply loan in reasonable time after abstract furnished, 228a. entitled to commission for procuring loan, 232a. not entitled to commission for loan defeated by misrepresentation of borrower, 249a. to procure loan may purchase the land at mortgage sale, 255a. entitled to commission for casual connection with sale, 256a. barred commission by failure of borrower to raise money to secure loan, 257a. first of several to secure loan entitled to commission, 257b. refusal of owner to fix date of public sale not breach of employment contract, 2f>9b. liable in damages for assuring responsibility of irresponsible lessee, 271a, sale of land by mortgagee not withdrawal contemplated by contract, 274a. when mortgage should not be added to increase commission, 275a. who ceased efforts not entitled to commission on sale of bonds by another, 277a. not entitled to commission on bonds sold to customer after agency ended, 277b. entitled only to advances when sale made by owner's manager, 282a. required to surrender collateral on revocation of authority, 283a. INDEX. 989 X [References are to sections.] Broker Continued. denied right to assert lien for commission on exchange rescinded for fraud, 284a. when lien on purchaser's interest not enforceable, 287b. what he must show to recover for owner's bad faith, 313. to procure loan unauthorized to transfer principal's note and mort- gage, 337c. entitled to commission on land sold through mistake of owner, 341a. not liable to third parties for acts in representative capacity, 34 Ib. may make oral contracts between themselves, 37 la, 583a. receipt for purchase money bound owner, 385a. three brothers employing liable for commission, 407a. owner not bound to accept customer at less price than stipulated, 409a. to sell has no power to bind principal to sell and convey, 418a. entitled to commission on sale of lands other than those listed, 423b. right to commission predicated on contractual relations, 423c. owner selling for less to customer liable for commission, 426a. accepting change of sale contract to option did not bind principal, 427a. employment contract void where made void elsewhere, 433a. law cited where employment contract void after one year, 433b. contract with printed signature upheld because acted upon, 433c. entitled to payment of commission as collections made, 440a. entitled to commission on furnishing name of prospective purchaser to owner, 450a. not entitled to commission on unfinished negotiations, 458a, not performing contract producing one to buy asking for abstract, 476a. when told of proposed purchaser owner may them raise price, 477a. where owner must satisfy right to commission in one of two meth- ods, 479a. not entitled to commission when payable by purchaser who de- faulted, 483a. direct sale by owner to unknown customer defeats commission, 489a. parol contract can not take property out of hands holding under written one, 492b. specific written supersedes ordinary rule as to payment of commis- sion, 492c. entitled to commission for sale of house on installments, 493a. employed to sell entire tract must do so to earn commission, 496a. entitled to commission on owner wrongfully terminating contract to sell, 496b. selling in different acreage portions from that prescribed barred commission, 496c. 990 INDEX. [References are to sections.] Broker Continued. entitled to commission when three-fourths of collections enough to pay them, 496d. entitled to share of profits on resale of land purchased, 497a. agreement to wait for commission until owner sold farm limited to a reasonable time, 498a. on owner refusing to convey liable for commission, though date of settlement time fixed, 499a. barred commission when lease not executed, 499d. owner not liable on his breach when commission payable by pur- chaser, 499e. guilty of misrepresentations defeating sale barred commission, 499f. entitled to commission although contract contemplated another to follow, 499g. on breach, commission due, although contract provided for payment as purchaser paid, 499h. not entitled to commission where contract differed as to deferred payments, 503a. procuring cause of sale entitled to commission, 507a. owner can counterclaim for expenses of suit caused by misrepresen- tations, 514a. owner accepting purchaser waived showing of financial ability, 515b. ordinarily must prove financial ability of purchaser, 515c. to recover commission must show variance was waived by owner, 515d. on waiving his rights not entitled to commission, 515e. on breach of contract to exchange can not recover of wrongdoer commission to be paid by other party, 517a. entitled to commission though he did not disclose buyer's name, 530a. contracting for commission entitled to same rate on less price, 532a. entitled to commission on breach by vendor although postponed till title passed, 536a. acquiring interest in purchase and contracting beyond authority, same void, 549a. owner allowed withheld money, barred recovery of commission paid, 554a. acquiring interest adverse to owner forfeits commission and gains, 578a. not meeting earlier demands entitled to share profits with others, 584a. entitled to commission on corporation acquiring title to land, 596a. when employed to purchase, in absence of binding contract, owner must have good title to entitle to commission, 596b. postal card insufficient as contract for commission, 601a. entitled to commission when owner and customer reach agreement, 602b. INDEX. 991 [References are to sections.] Broker Continued. entitled to commission on contract held to sell and not of agency, 602c. entitled to commission on contract signed by all tenants in common, 602d. contract of, as well as middleman, must be in writing, 602d. contract requiring owner to designate tracts to be sold meant in a reasonable time, 612b. owner bound for a reasonable time to find a purchaser, 612c. contract of employment in March not ended in August, 612d. when six months not unreasonable delay in accepting offer, 614a. when knowledge of withheld from purchaser did not bind latter, 618b. sale by owner's son barred commission, 624a. in absence of agreement, could not enforce division of commission, 632c. action for breach of contract need not allege fraud, 641a. failure to state performance of contract no cause of action, 649b. petition against for fraud in exchange of land, 656b. owner rendering himself unable to perform no defense to action for commission, 692a. denying purchaser's responsibility no defense to action for commis- sions, 694b. no defense to action for commission that purchaser's name was not given, 69 5b. commission due on consummation of sale, when not a defense to owner, 699a. contract of employment by implication, 712b. must advise principal on finding a purchaser, 712c. statement by vendor after sale insufficient to establish agency, 712d. acting for another in purchasing property confers no right to com- mission from vendor, 712e. burden of showing why contract failed not on, 715a. to find a purchaser need not show he induced purchase, 716a. to reserve mineral rights must show purchaser so understood, 719b. in suit for commission written opinion to show defective title ad- missible, 730a. evidence admissible to show contract for compensation, 749b. not sufficient to show his but one of chain of causes, 822a. must prove contract as pleaded, 833d. failure of minds to meet in fixing commissions, 838b. defendant estopped to deny authority of, 849a. estopped to claim benefit to party he did not represent, 860a. waiver of commission in hope of future favors, 860b. oral promise to make contract will not estop right to commission, 861*. 992 INDEX. [References are to sections.] Brokerage, equivalent to compensation for services, 8a. in Illinois corporation not authorized to do business of real estate, 38. contract an option, and not one of, 85a. contract held an option and also of, HOa. Building material, builder's contract, builder's loan, 282. restriction: sale subject to, 24. Burden of proof, examples of, 51, 57, 314, 321, 464, 705-728d. Business, broker can not require his principal to go to place of, 40, 41. c California, contract with broker to sell land must be in writing, 590. contract for the sale of lands must be in writing, 79b. Canal, erroneous description of land adjoining, 59. Cancellation of contract, 22, 292, 314, 462, 454, 482, 986a. of deed of trust, 57, 572, 248a, 255b. Care, instruction that broker should exercise greatest, 962. Cash, 18, 41, 121, 144, 292, 314, 328g, 422, 422a, 422b, 464, 570, 626. Cashier, 328p, 865. Caveat emptor, 52, 315. Changes made in contracts, 55, 175a. Checks, vendor not required to accept in payment for land, 420b. purchaser could not defeat broker's right to collection of, 25. when a sufficient deposit, 297. in full of demands that was not an accord and satisfaction, 562. dismissal of action against drawer of not error, 863. Church property, 10, 446. Circumstances to show broker agent of lender, 256. Clandestinely representing opposite party, 290. Clerks, 301. Cloud on title justified purchaser not to complete sale, 514. Cloud on title by default of purchaser, 556. Co-agent, when not bound by option, 24, 35, 98. Collateral, broker required to surrender on revocation of authority, 283a. Collusion, 296. Colorado, contract for sale of lands must be in writing, 79b. Commissions and compensation of agents and brokers, Pt. 4, Sec. 423-558. Commissions, when earned. under exclusive right, when sale by owner, only when so provided, 13. when purchaser procured before revocation, 15. upon ratification of unauthorized acts, 24. on sale of contract for sale of real estate, 28, 145. on sale of lots by partnership, 37. on acting openly and buying vendor's property, 40. although he gives part to customer, 41. INDEX. 993 [References are to sections.] Commissions, when earned Continued. on furnishing purchaser as requested by letter, 42. on furnishing purchaser, although contract ambiguous, 49. on selling land for bank, 50. on sale by broker before change made by seller, 55. on sale of interest of tenant in common, 64. on sale on indirect information from broker, 69a. on securing option, 83. finding acceptable purchaser, 84. on customer exercising option, 86, 96. on making sale, although principal held only option, 87. on effecting sale of land, 113. when amount of sale increased entitled to more, 115. although sale enjoined, 118, 469. under contract entitled on withdrawal of land from sale, 120. allowed recovery on effortless sale, 132. on effecting an exchange of lands, 150, 152. on effecting an exchange although other property substituted, 151. when exchange wrongfully broken off by principal, 170. on effecting exchange of lands, though terms changed by parties, 175. for effecting exchange under severable contract, 176. for exchange when purchaser could give title to property offered in exchange, 180. for exchange for amount to boot, entitled to commission on whole value, 185. on effecting binding contract of exchange, 186. on producing customer willing to exchange, 188. when both parties agree on terms of exchange of lands, 191. although one party to exchange failed to perform, 192. for lease, with privilege of purchase, 200. for securing a lessee, 204. for bringing about a sale or lease, 215, 491. for procuring a loan, 226a, 632d. for procuring a loan for a less amount which is accepted, 233, 429. on finding a lender, 234, 430. where lender refused after principal cured defect in title to make the loan, 240. charging more, entitled to statutory fee, 241. for procuring loan, though principal refused to take, 242. on securing buyer for bonds, 277. on openly and in good faith purchasing principal's property, 290. for finding purchaser though principal previously but in bad faith sold to another, 302. on procuring purchaser on owner's terms, 313. although purchaser postpones purchase, 3(35. although principal takes land in lieu of cash, 369, 376. 994 INDEX. [References are to sections.] Commissions, when earned Continued. although vendor refuses to sell, 374. refused land for commission may take cash, 377. release by one left other entitled to half of remaining land, 379. although owner refused to convey, 374a. release of vendee by vendor did not affect, 380. sub-agent entitled to one-half commissions, 396. entitled to commission on quantity contracted for, 423, 423a. computed on actual price received, 560. notwithstanding immaterial variance in description, 428, 428a. where principal refuses to appraise, 434. on sale by owner on share of two tenants in common, 440. first broker who succeeds entitled to, 445. broker who was procuring cause of sale entitled to, 446. entitled to in stock of insurance company, 468. on forfeited payments made by defaulting purchaser, 462, 500, 506. not entitled to full commission until price paid, 470. as middleman may recover from each principal, 475. modification in broker's presence did not affect right to, 478. in some jurisdictions on sale at net price, 482. on sale at net price and note for excess to broker, and default by vendor, 483. although vendor changed gross to net price, 485. where failure of sale not caused by his fault, 488. where principal sold before time expired, 490. where oral was followed by written contract to sell land, 492. on sale of part by owner to customer, 496. when contract of exchange executed, 499a. when actual transfer made, 499b. where sale frustrated through failure to partition, 508. first entitled by second's relinquishment, 515. sub-agent entitled to share commissions, 523. sub-agent entitled to commission though he failed to give the name of the purchaser, 525. sale to railroad instead of to syndicate did not deprive of, 526. although sale other than contemplated, 527. not affected by owner's suppositions, 528. when vendor sought to vary terms and purchaser refused to take, 531. on bringing parties together though they contract on different terms, 532. not affected by defect in owner's title, 533. on producing buyer, whether principal or another holds the title, 538. although holder of record title ignorant of contract, 540. where sale failed after memorandum contract signed, 542. not affected by undisclosed agreement to divide commissions with. purchaser, 545. not affected by variance in name of ranch sold, 550. INDEX. 995 [References are to sections.] Commissions, when earned Continued. on withdrawing land from sale, 552. where sale failed because rights of two heirs were not acquired, 555. circumstances generally entitling to, 557. for purchaser brought through advertisement, 561. although agreed to divide with third persons, 695a. on sale by owner without notice of revocation, 142a, 1110. on sale for fellow-broker, 76b. on option after death of owner, 85b. on exchange, though customer defaults, 87a. on owner giving option, 89a. on aiding in making sale, 113a. on sale where buyer paid more cash than required, 113b. on sale to a different person, 113c. broker must effect sale or binding contract, 113d. on transfer of undivided interest to joint owner, 125a. on sale by owner to broker's customer, 142b, 399a, 426a. for exchange with person purporting to be agent of another, 165a. for exchange defeated by failure to pay off liens, 177a. for fairly secured agreement to exchange, 186a. for agreement to exchange though not in writing, 191a. on exchange may recover from both parties, 195b. for procuring lease, 203a. for procuring lease, though tenant defaulted, 207a, for lease which failed, husband not signing, 216c. on furnishing satisfactory tenant, 221a. when procured lessee signed with co-lessees, 221b. on acceptance of lease by owner's lawyer, 221c. on lease though secured in violation of instructions, 221d. on securing loan, 232a. on casual connection with the sale, 256a. for first of several brokers to secure loan, 257b. for land sold through mistake of owner, 341a. by sub-agent to stipulated share, 396a. by sub-agent to half commission on option and sale, 397ft. by sub-agent when employed to assist, 397b. for sale of lands other than those listed, 423b. on sale proportioned as payments collected, 440a. on sale of house on installments, 493a. when three-fourths of collections enough to pay, 496d. and payable in reasonable time, though to be when owner sold farm, 498a. on owner refusing to convey, though date of settlement time fixed, 499c. 996 INDEX. [References are to sections.] Commissions, when earned Continued. although agreement contemplated another contract, 499g. on breach, though to be paid as buyers paid, 499h. where broker procuring cause of sale, 507a. entitled without disclosing buyer's name, 530a. on breach by vendor, though payment postponed till title passed, 536a. when owner and customer reach an agreement, 602b. on contract held one of sale and not of agency, 602c. on contract signed by all tenants in common, 602d. Commissions, when not earned. under exclusive right on sale by another, when not so provided in contract, 13. obtaining price of land from owner insufficient, 17, 70. acting under authority from one executor only, 34. concealing name of real and putting forward fictitious purchaser, 41. where owner forced to join joint owner in sale, 42, 125. for contingent sale which failed, 54. where counter-proposition not an acceptance, 56. when vendor refused to give warranty deed, 57. indirect acts of broker ineffectual, 69. securing a mere option instead of a sale, 85. for sale under an option, 92. to procure loan, not entitled for option, 93. for options withdrawn before contract, 95. for unexercised option, 101. for securing only part of options, 103. for a nominal sale, 116. when failure caused by no fault of principal, 122. for sale by wrong description, 123, 181. selling below authorized price, 134. second selling to client of first, latter not entitled, 14L sale by owner before that by broker, 142. acquiescence by broker in disagreement, 143. effecting exchange with irresponsible customer, 157. effecting an exchange without employment, 162. broker did nothing, owner making exchange, 169. exchange defeated by existence of lease, 177. exchange defeated by failure to furnish abstract of title, 179. effecting exchange by interfering, 178. on failure of conditional agreement, 182. where misrepresentation defeated exchange, 183. failure of exchange by reason of encroachments, 187. failure to secure transfers in exchange, 193. where party to exchange shows bad faith, 195. broker to sell securing one willing to lease, 198. INDEX. 997 [References are to sections.] Commissions, when not earned Continued. for securing lease, when employed to collect rents, 207. broker for tenant has no claim on lessor, 208. to secure lessee not entitled for option, 209. securing lease for five years, sale at second, loses remaining commis- sion. 212. after revocation on lease to customer by owner, 214. where sale of lease defeated by lessor's refusing to assign, 216. for preventing lease to highest bidder, 217. when payable from proceeds, and loan refused for bad title, 223. where lender refused to consummate loan, 224. for securing conditional loan, 225. loan by seller to buyer, latter not liable to former's broker, 232. for failure to report loan, 235, 431. where owner himself procures loan, 245. broker failing to secure loan, and owner securing from same party, 247. broker to examine title and secure loan, on failure by defect in title, 248. losing loan through wrong dimensions, 249. conditional sale of mortgage not consummated, 272. on bonds being declared illegal, 276. on buyer withdrawing from sale of bonds, 278. for concealing important information from principal, 291. making contract in excess of authority, 307c. sale by owner after abandonment by broker, 292. for sham sale through collusion, 296. where broker really represented opposing party, 295. where sale deceitfully made, 298. where broker acts fraudulently with his principal, 314. when broker is guilty of negligence, 346. when brokers make pool to divide commission, 371. on vendor refusing to sell, in absence of custom to contrary, 378. buying property not entitled on its sale, 389, 389a, 389b, 389. by wrongful concealment by sub-agent, 391. by sub-agent exceeding his authority, 392. secretly learning price and sending buyer, 399. secretly representing both parties, 400. broker member of purchasing syndicate, 405. sale by owner before syndicate formed, 406. selling at lower price than authorized, 408. failing to disclose best terms to principal, 412. for interfering in another transaction, 424. for a sale at less than fixed price, 426. contract secured not a lease, 427. broker negotiating with two, sale by owner to one, 432. for sale void by statute, 433. 998 INDEX. [References are to sections.] Commissions, when not earned Continued. for shortage in length, when purchaser who defaulted knew the fact, 435. broker unsuccessful with F., owner selling to him and another, 437. where party to execute sale shows bad faith, 438. unless exclusive on sale by another broker, 439. broker preventing competitive bidding, 441. can not charge to beneficiaries, 442. by break in continuity of broker's negotiations, 447. by break in sequence, 448. sale by principal, uninfluenced by broker, 454. failure to consummate contract of sale, 458. by default of purchaser, 462, 556. not informing principal of customer, 471. on making a sale at net price, 482. where neither principal nor other broker knew of negotiations of broker, 489. employed to sell four houses, not entitled to same proportion for one, 493. where not the procuring cause of sale, 507. where customer exercises reserved right to withdraw for bad title, 517, 534. where broker to have part of profit, on sale failing by defect in title, 535. where sale defeated by supposed defect in title, 537. sale defeated by want of title, which broker knew, 539. where sale failed by dispute over taxes, 541. by unavailing efforts to effect a sale, 543. procuring buyer for vested remainder on different terms, 548. if sale to be void if first payment fails, 549. for contract too vague for enforcement, 551. by withdrawal and sale in good faith by owner, 553. circumstances under which not earned, 558. by waiver of right, 560. where contract of sale unenforceable, 603. when sub-agent not employed by principal, lla. when sub-agent illegally appointed can not bind principal, lib. on sale made after appointment of receiver, 62a. on principal giving option to procured buyer, 108a. when purchaser induced by catalogue, 128a. on sale by owner to broker's customer after employment ended, 142b. on exchange with customer by another broker, 151a. on exchange with irresponsible person, 165b. on introduction where exchange was made by another, 169a. on fraudulently altered contract, 175a. on exchange where party lacked title to land, 180a. on exchange of homestead, wife not joining, 183a. where party withdrew offer to exchange, 192a. where liquidated damages fixed for breach, 195a. INDEX. 999 [References are to sections.! Commissions, when not earned Continued. where exchange defeated by flaw in title, 195c. where customer procured to lease buys, 198a. where lessee failed to renew, 206a. where lease made to another party and not renewed, 212a. where owner and tenant independently made lease, 214a. where building destroyed before lease signed, 216b. where lessee failed to give required security, 217d. when not entitled to part of commission paid other broker, 221e. for procuring irresponsible lessee, 221f. on loan defeated through borrower's misrepresentation, 249a. on failure of borrower to raise money to secure loan, 257a. on bonds sold by another agent, 277a. on bonds sold to broker's customer after agency ended, 277b. on sale made by owner's manager, 282a. on negotiations not culminating in a contract, 458a. when commission payable by purchaser who defaulted, 483a. on sale by owner to unknown customer of broker, 489a. for sale in different acreage portion from that prescribed, 496c. for lease not executed, 499d. when guilty of fraud or misrepresentation, 499f. when contract differed as to deferred payments, 503a. where broker waived his rights thereto, 515a. on sale to broker's customer by owner's son, 624a. without agreement broker could not enforce division of commission, 632c. from vendor when broker acted for purchaser, 712e. when law of place of performance governs as to, 1129. Commissions or compensation. broker entitled to reasonable, 615, 616. in estimating on exchanges, actual and not trade values govern, 149. paid broker may be recovered from party in default, 163, 382, 554. methods of earning, 474. whether additional promised a question for jury, 918. Common counts, 314, 631, 704a. Competing purchasers, broker not necessarily guilty in representing, 320. Competition, preventing, 441. Complaint. See PETITION OB COMPLAINT. Completion of transaction, commission usually payable upon, 504. Computation of commissions made on actual sum received, 486, 560. as agreed upon, 423a. Computing commission, mortgage treated as part of purchase price, 275. Compromise, 765. Concealed principal. See UNDISCLOSED PBINCIPAL. 1000 INDEX. [References are to sections.] Concealment, 41, 222, 291, 299, 314, 315, 318, 320, 382, 391, 446, 487, 558, 583. Conditional agreements, 40, 44, 182, 225, 458, 517, 558. sale of mortgage, 272. Conditions precedent, 45, 54, 470, 557, 570, 587. Conduct of broker, 302. of owner, 302a. Conformity, 568. Connivance, 182. Consent, 17, 51, 120, 290, 314, 567, 644, 1036. Consideration, contract must be based upon a, 19. agreement to wait for commission unsupported by a, 174. failure of, 46, 1048. moral obligation as, 433d, 590. essential constituent of an enforceable contract, 21. what constitutes valuable, a question of law, 1007. when the return of must be pleaded, 630. contract that did not rest on an immoral, 559. Consolidation of interests not a sale, 66. Conspiracy of broker and purchaser to defraud vendor, 862a. purchaser and owner to deprive broker of commissions, 862b. Constructions. See JUDICIAL CONSTRUCTIONS AND INTERPRETATIONS. Consummation of sale, lease loan, exchange, mortgage, 23, 119, 156, 189, 218, 224, 233, 272, 375, 433, 449, 458, 482, 499a, 499b, 570, 572. Contingency, 54, 780. Continuity broken, and its effects, 447. Contractual relations. As to insufficiency of acts to establish, 69. information not establishing, 70. Contract of sale, to set aside, 130, 151, 295, 321. deed treated as a, 57. entire or severable, 67. if fails by defect in title may deprive broker of commission, 12. coupled with an interest, 16. in excess of authority does not bind principal, 18. special for sale of real estate, 17. unilateral, 20, 397. Contract, must be based upon a consideration, 19, 21. repudiation or rescission of, 23. ratification of, 24. personal, promise by administrator to broker, 34. Contract, conditional, 44, 65. agent varying terms not entitled to commission, 41. condition precedent to taking effect, 45. INDEX. 1001 [References are to sections.? Contract, conditional Continued. effect of death of principal or agent, 46. ambiguous, construction given to, 49. changes in, 55. not that of the owner, 55. failure of vendor to re-execute, 73. to divide commissions must be in writing, 79. agent may be authorized by parol to make lease or sale of real prop- erty, 79a. for sale of lands in certain States must be in writing, 79b. with another, telegram should reach principal before, 81. to take beyond net price for commission an agency and not an option, 82. exercise of option revokes agency, 89. to sell, etc., a mere option, 90. sale by owner, subject to option, not a breach of, 91. principal liable to action for breach of, 36, 42, 102, 563, 299, 572. what is not a breach of, 37. of exchange of lands, subject to encroachments, a mere option, 97. when petition shows no breach of, 636. can not recover on proof of substituted, 638. of sale may be established by circumstantial evidence, 114. prima facie evidence of readiness to buy, 117. exchange prima facie evidence of title, 190. to pay broker for effortless sale upheld, 132. may require a sale to entitle broker to commission, 133. without special, what required of broker to find a purchaser, 136. ended by a sale by one of rival brokers, 137. of sale, broker selling and vendee refusing to assign, 145. agreement to plat and sell, etc., 147. of exchange, broker entitled to commission on execution of, 150. to purchase land for exchange, sufficiency of, 154. to convey not sufficient to show title, 159. to procure a purchaser, 160. of exchange, failure of condition, 182. held to be severable, 176. broker selling under power in mortgage without notifying mortgagor commits no breach of, 259. abandonment of by purchaser, 292. abandonment by broker, 292. in excess of authority vested in broker, 307. varying from instructions will not be enforced, 307a. in excess of authority binds the broker, 307b. illegal, 327. 1002 INDEX. [References are to sections.] Contract, of sale under a general power, broker must bind principal by, 328J. of brokerage not set aside for fraud, 348. broker to make written, can not make oral, 363. to divide fees with sub-agent becomes binding when, 397. when modified, rights depend upon new, 411. for the sale of real estate may be established by oral evidence, 419. secured not a lease, and broker not entitled to commission, 427. consummation of, 449, 458. of sale, when invalidity unavailable to defeat commission, 454. by performance, 455, 567. severable, 455. failure of purchaser to carry out, 460. cancellation of, 462. in excess of authority, 458. defect in title defeating commission, 459. broker not required to prepare, 474a. oral, followed by written, to sell land entitles broker to commission, 492. commissions are due when contract made with purchaser produced by broker, 499. partial performance entitles broker to recover neither on contract nor on a quantum meruit, 509. in absence of express broker producing purchaser may recover on a quantum meruit, 513. broker entitled to commission on bringing parties together though they contract on different terms, 532. after memorandum contract signed, broker entitled to commission where principal refused to pay water tax, 542. in some States recovery may be had for partial performance of an entire, 546a. subject to unauthorized condition, broker not entitled to commission for procuring, 547. to be void if first payment fails, broker dees not earn commission, 549. withdrawal of land from sale entitles broker to commission, 552. withdrawal and sale by owner to customer, in good faith, bars com- mission, 553. parol, binds unnamed principal, 583. to pay commission on withdrawing land from sale strictly construed, 585. verbal for sale of land, no rights in equity under, 589. of sale requiring abstract of title not within authority, 597. usage proved, law presumes contract made with reference thereto, 599. where required to be in writing, without unenforceable, 602. where unenforceable broker can not recover commission, 603. by unlicensed broker not absolutely void, 604. hiring auctioneer need not be in writing, 605. INDEX. 1003 [References are to sections.] Contract, to pay plaintiff if defendant bought railroad good only for a reasonable time, 613. where unauthorized, knowledge of by principal a prerequisite to rati- fication, 624. ratification of, not shown by acquiescence in without knowledge, 618. ratification shown by acceptance of offer, 619. of employment, plaintiff must allege, 632a. what broker must show to recover on implied, 712a. recovery of money paid on unauthorized, 728a. to avoid issue must be presented by pleadings, 87 la. between owner and purchaser not evidence that broker found pur- chaser, 833a. invalid, instruction so stating misleading, 1002. of sale, instrument construed to be, 1087. when not invalid, 1092. not in violation of United States land laws, 1100. limited to one-half net profits, 1103. construed that broker was to receive one-half net profits, 1104. construed not to be harsh or unreasonable, 1106. construed to be one of agency, 1107. construed to be enforceable against principal, 1108. of agent to sell land, not objectionable though not signed by both parties, 1109. for benefit of third person may be, by him, enforced, 1111. of sale, distinction drawn between consummated and unconsummated, 1113. between brokers for division of commission construed, 1114. for commissions, construction of, 1115. held to be severable and not entire, 1116. construction defining employment of word "list," 1117. construction of, to pay commission to broker, 1118. construction of particular, 1119, 1120, 1121, 1122, 1124, 1127, 1128, 1129. when place of performance of governs, 1128, 1129. when interpretation of for the court, when a question of fact for jury, 1131. may be put in writing after performance, 79c. action ex delicto maintainable on parol, 79d. construed one of sale and not an option, 82a. of option not within statute of frauds, 83a. to sell land may give broker option to purchase, 34a. held an option and not one of brokerage, 85a. broker procuring customer to exchange who defaults, entitled to commission, S7a. to Bell real estate though word "option" is used, 90a. 1004 INDEX. [References are to sections.] Contract to pay, etc. Continued. held an option and brokerage, llOa. held not within statute of frauds, 140a. fraudulently altered barred commissions, 175a. for exchange, not in writing, does not bar commission, 191a. act constituting breach of, 259a. refusal of owner to fix date of public sale not a breach of, 259b. brokers may make oral between themselves, 37 la. three brothers acting for family liable for commission on, 407a. written to sell realty can not be modified orally, 41 la. held to guarantee payment of $8,000 for land sold at public sale, 403a. to sell gives no power to bind principal to sell and convey, 418a. to sell land not required to be in writing, 419a. broker accepting change of sale to option did not bind principal, 427a. of employment of broker void by law of state where made void every- where, 433a. with broker by statute void after one year, 433b. with broker where signature printed upheld, 433c. void, yet notes collectible, 433d. negotiations not constituting contract, broker barred commission, 458a. broker not performing by producing one who asks for abstract in ad- dition, 476a. specific supersedes prior indefinite, 492a. on breach to exchange broker can not recover from wrongdoer com- mission payable by other party, 517a. between agent and sub need not be in writing, 523a. by broker beyond authority void, 549a. between brokers to share commissions need not be in writing, 583a. broker entitled to commission on corporation acquiring title to land, 596a. broker to purchase, without binding contract, must get one with good title to earn commission, 596b. postal card insufficient to constitute, 601a. held one to sell and not of agency, 602c. signed by all tenants in common entitled broker to commission, 602d. of employment must be in writing whether broker or middleman, 602e. to purchase land not required to be in writing, 603a. of employment of broker in March not ended in August, 612d. in absence of broker could not enforce division of commission, 632c. broker's failure to show performance no cause of action, 649b. broker's failure to state performance of, 649b. broker's failure to properly state employment, 650a. INDEX. 1005 [References are to sections.] Contract to pay, etc. Continued. of employment by implication, 712b. evidence admissible to show one for compensation, 749b. broker must prove as pleaded, 833d. oral promise to make does not estop to deny right to commission, 861a. alleging express can not recover on implied, 883a. where binding needed to finding a purchaser, 465. without broker must consummate sale, 465. fulfillment of not interfered with by courts, 571. construction of, 1132. Conversations a/3 evidence, 735, 736, 809a, 827. Conveyances, setting aside of, 18, 57, 572. Co-operation, 219. Corporations, 24, 38, 204a, 328n, 305, 314, 468, 557, 572, 574, 596a, 1075c. Correspondence, 17, 18, 21, 23, 24, 42, 79, 237, 564, 648, 738, 757, 803a, 829, 1079. Costs, 569, 700a. Counter-proposition, 56. County. When not chargeable with a debt, 303a. Courts, 17, 314, 571, 1066, 1131. findings by, 1048-1053b. Covenants, 43, 239, 364, 417- Credit, 53. Creditor collecting rent can not pay therefrom hie own debt, 386. failing to impeach conveyance, 151. Crops, 486, 500a. Cross-examination, 817, 817a, 817b Cross-petition, 630. Custodian of contract, in absence of other arrangement, broker is, 557. Custom or usage, 24, 462, 598, 599, 626, 626a, 746, 764, 1021, 1026. D Damages, actions for, 15, 26, 271a, 299, 313, 462, 563, 572. error to charge jury not bound by any rule in fixing, 1013. measure of, 300, 358, 396, 462, 587. speculative, 300. certain expenses not elements of, 581. See also PETITION. Deals, 455, 570, 771, 820, 866, 967. Death, its effect upon contracts, 15, 34, 46, 456. single letter insufficient to establish agency after, 48. Debt, when county not chargeable with a, 303a. of another, 303. 1006 INDEX. [References are to sections. 1 Debtor before payment should see agent has security, 357. Decedent, 34. Deceit, 41, 298, 321, 607, 1053, 1073. Deeds, 15, 18, 24, 33, 35, 39, 43, 57, 90, 144, 159, 161, 163, 290, 291, 292, 311, 314, 335, 364, 368, 464, 572, 574, 612a, 626, 628, 758, 925. their execution by agents, 58. Default, party in liable for commission, 163. Default, purchaser in, broker not entitled to commission, 274, 462, 556. broker in, liable to pay interest, 322. not necessary to put defendant in before suing for fees, 617. in an exchange, liable for commission paid broker, 163. to entitle broker to commission, must be by refusal or, of principal, 458. Defaulting as to exchange, party not liable to broker for commission, 1035. purchaser, broker has right of action against for lost commission, 588. vendee, broker entitled to commission on actual payments by, 500. 500a, 506. Defeat of broker's right to commissions, what effects. merely obtaining price from owner, and not employed, 17. purchaser making parol contract and repudiating before it is re- duced to writing, 41. by misrepresentations of broker, 42, 188. by broker's mistake in describing land, 181. by failure of conditional agreement, 182. by failure to secure transfers from parties to exchange, 198. sale frustrated by lessor's refusal to assign, 216. where lender refused to consummate loan, 224. conditional loan, defeated by defect in title, 225. by failure of purchaser to execute mortgage, 274. by breach of broker's duty to principal, 290. by negligence of broker, 346. by sub-agent concealing fact from principal, 391. by sub-agent exceeding authority, 392. by secretly representing both parties, 400. broker a member of purchasing syndicate, 405. broker making sale on lower terms than authorized, 408. broker failing .to disclose to principal the best terms obtainable, 412, 412a. where purchaser who knew exact length of lot refused on that account to take, 435. instances of defeat of broker's right to commission, 454. by failure to consummate contract of sale, 458. in certain cases by failure of sale by defect in title, 459. INDEX. 1007 [References are to sections.] Defeat of broker's right to commissions, what effects Continued. on account of irresponsibility of purchaser, 464. failure to inform principal of customer, 471. for sale not within the description, 476. when commission payable from purchase money, where sale not made, 501. by broker's erroneous advice as to liability for sewer tax, 529. by demand of $10,000 to release contract lien, 514. sub-agent could not recover unlawful commissions, 522. Defeat of broker's right to commissions, what does, not effect. sale by owner to one with whom broker had begun negotiations, 15. refusal of wife to join in deed of conveyance, 39. although principal held only an option at time of sale, 87. that customer does not own land, when he has a contract for its pur- chase, 154. by lessor's arbitrarily refusing to accept lease, 197. by principal refusing to take loan, 242. by principal selling to another after broker has a customer, 302. by immaterial variance in the description, 428, 428a. instances which did not defeat broker's right to commissions, 454. selling a portion instead of whole tract, 458. payment of forfeiture held equivalent to performance, 462. on making contract, which is accepted, although purchaser turns out to be irresponsible, 464. litigation instituted by third persons, 473. by modification not assented to by broker, 477. by modification by owner in broker's presence, 478. broker failing to disclose that nominal is not the real purchaser. 487. reporting offer of $16,000 instead of $15.000, 491. because to be paid from purchase money, and Bale failed, 501. failing to name purchaser in telegram to owner, 530. if purchaser willing to perform statute of frauds unavailable to de- feat, 609. Defeat of loan through wrong dimensions, 249. Defective petition for commission on passing of title, 649. for procuring tenant, in not alleging to ell, 850. for selling bonds, 652. in not alleging agreements stated, 654. Defects in principal's title, 345, 459. Defenses, 218, 675-703h, 1029. Definitions. See JUDICIAL COKSTEUCTJONB Ain> INTKHPBETATIONS. See WORDS. Delays, 18, 41, 292, 296, 614d. Delegated authority, 2, 5, 987. Demurrable, alleging sale by owner ending contract, 643. alleging notice of double employment not, 646. 1008 INDEX. [References are to sections.] Demurra&le alleging sale by owner ending contract Continued. incomplete copies of unsigned letter*), 648. asking judgment for excess over net price, on refusal to sell, 655. Demurrer, 640, 659-665a. Departures, what are not, 669, 704, 704a. Deposits, 50, 51, 297, 558, 805. Description of property, 59, 123, 181, 267, 296, 428, 428a, 451b, 476. Destruction of subject-matter of contract, 16. Diamonds, 434. Difference in price principal willing to sell at and asked, 456. Dimensions of property, 249, 435, 451. Disagreements, 143, 465. Discretion, 5, 111, 304, 328i, 825. acts involving broker can not sub-delegate, 5. Dismissal of action, when proper, 636a, 863. when error, 864, 1078. may receive evidence after motion for, 833b. Dissolution of agency. See AGENCY, TEBMINATION OF. Dissuasion, 810. Division of commissions. See SHARING COMMISSIONS. Double liability, 36, 305. compensation, 232, 254, 475, 559, 576, 630. capacity, 306. payment of commissions, burden of proof, 728a. employment forbidden, 51. notice or knowledge of by principal, 560. allegation of notice of not demurrable, 644. Drunkenness, 60. Due, when commissions become, 499, 499a, 499b. Duplicate, contract in, 458. Duty or obligation, 165, 290, 291, 314, 344, 420, 420a, 456, 578, 656a. E Earned, when a broker's commissions are, 499a. commissions, to recover immaterial whether broker was agent, 799a. owner can not by refusing to convey defeat, 374a. Ejectment, 57, 311, 595. Election of remedies, 414a. Employe of seller defeating sale, broker entitled to commission, 451. Employment of broker, 12, 13, 17, 21, 92, 564. sale according to terms of entitles broker to commission, 113. suffices in the absence of ratification, 24. when offer to pay broker does not show, 173. double forbidden, 51. INDEX. 1009 [References are to sections.] Employment of broker Continued. participation in exchange, without, does not entitle broker to com- mission, 162. abandonment of, 292, 558. in absence of, introducing purchaser sometimes insufficient, 450. of engineer, 310. custom insufficient to supply lack of, 626a. in petition for commissions must allege contract of, 632a. of broker to measure land, 594. Encroachments, 228, 766. Entries, in books as evidence, 748. Equitable title to stock, 572. Equity, 314, 321, 572, 589, 987. Error, to prevent showing how option was made to buyer, 106. to grant new trial to set up exercise of option, 111. to prevent defendant showing broker was employed by other party, 166. to grant judgment for full amount of commission when loan failed, 250. refusal to grant non-suit not, 1075a. in awarding verdict to real estate agent, 1076b. Errors, 1072-1078k. Escrow, de.ed in, 34, 297. Estoppels, 107, 211, 246, 258, 329, 601, 839-862c. Evidence, contract of sale may be established by circumstantial, 114. deed of conveyance to prove exchange, 161. proof necessary to recover commission for exchange when not con- summated, 189. execution of contract prima facie evidence of title, 190. verdict set aside as against the weight of, 252. admissible, 237, 684b, 696a, 729-761d. inadmissible, 184, 762-783d, 802a. immaterial, 174, 525, 784-803a, 805b, 80c. irrelevant, 804-809c. in general, 810-833c. declarations, 777, 834-836. self-serving, 837. admissions, 34. admissions against interest, 888. verdict must be palpably against weight of eyidenee to authorize set- ting aside, 1055, 1066. Exceptions, 433a, 573. Excess in price as compensation, 11, 53, 142, 289, 290, 300, 320, 456, 481, 482, 483, 484, 1040, 1094. when broker must account for to principal, 630. 1010 INDEX. [References are to sections.] Exchange, to constitute value of estates, should be equal, 184. broker, for commission, has no title or interest in property ex- changed, 172. mere offer to pay broker does not show employment, 173. agreement to wait for earned commissions without consideration, 174. broker effecting, entitled to commission, though terms changed by parties, 175. contract of held to be severable, 176. defeated by lease, broker not entitled to commission, 177. interfering broker not entitled to commission for effecting, 178. defeated by failure to furnish abstract of title, broker not entitled to commission, 179. broker entitled to commission where purchaser able to give title to property in exchange, 180. mistake in description defeated broker's right to commission, 181. failure of conditional agreement to, broker not entitled to commission, 182. misrepresentation by agent defeated right to commission, 183. receipt given in another transaction inadmissible, 184. for amount to boot, broker entitled to commission on whole value, 185. broker entitled to commission on effecting binding contract of, 186. broker entitled to commission on producing one willing to, 188. on failure to consummate, proof necessary to recover commission, 189. broker earns commission when both parties agree en terms of, 191. broker's right to commission not affected by failure of one party to perform, 192. failure to secure transfers defeats right to commission, 193. value of land in may be shown to jury, 194. broker not entitled to commission where party shows bad faith, 195. broker not entitled to commission where party to does not show good faith, 438. broker not entitled to commission for an exchange with unperform- able conditions, 438. of goods for land, 467. default of customer to does not bar commission, 87a. party to barred recovery of commission paid broker, 139a. broker not entitled to commission when effected by another, 151a. broker to required to act in good faith, 158a. broker to earn commission must produce one willing to, 157a. broker entitled to commission for with person purporting to be agent of another, IflSa. broker not entitled to commission where party to irresponsible, 165b. introduction not enough to entitle broker to commission, 169a. broker not entitled to commission where party had no title, 180a. broker entitled to commission on securing agreement for, 186a. broker entitled to commission though contract not in writing, 191a. INDEX. 1011 [References are to sections.] Exchange to constitute value of estates, should be equal Continued broker not entitled to commission where party withdraws offer to, 192a. broker not entitled to commission where liquidated damages fixed for breach, 195a. broker entitled to commission from both parties to, 195b. broker not entitled to commission when defeated by flaw in title, 195c. broker denied right to assert lien when rescinded for fraud, 284a. waiver by party to that other assume mortgage,- 51 5f. on breach, broker can not recover from wrongdoer commisaion to be paid by other party, 517a. petition against broker for fraud in, 656b. release of party to no defence that note not yet due, 698a. party to estopped by act of his agent, 848a. when other party not charged with notice of broker's misrepresenta- tion, 36. when knowledge of broker not acquired while agent, 86. when facts may warrant recovery of commission but from oe party, 51. effect of concealment by broker, 291. defeated by fraud of broker, 814. when action for wrong of broker will not lie against principal, 316. when party to may revoke broker's contract, 658. conflict of interests in broker representing both parties to, 559. Exchanges of real estate, 19, 41, 149-195, 290, 314, 382, 454, 458, 558, 576, 609, 626, 764, 787, 796. Exclusive employment as broker or agent, 13, 22, 56, 446, 458, 465, 559, 570. Executed sale, 767. Executors and administrators, 5, 34, 198, 280, 45, 458, 493, 657, 687, 651. Ex maleficio, trustee, 36. Exoneration, 308. Expenses, 15, 262, 289, 809, 514a, 661. Experte, 228, 766, 766a. Extra compensation, examined to see whether reaonabl, 81. F "Failure of sale by disagreement, 41. by defect in title, 459. by purchaser, 460. by failure to furnish abstract of title, 179. 1012 INDEX. [References are to sections.] Failure to sell and owner selling for lese, 148. of consideration, 461, 1048. of conditional agreement, 182. of broker to report offer, 312. to disclose nominal not real purchaser, 487. not caused by fault of broker, 488. to sell all, and owner selling part to customer, 496. of broker to disclose best terms obtainable, 412. to give name of purchaser, 525. of sale by dispute over taxes, 541. of sale after memorandum contract signed, 542. of sale because rights of two heirs not acquired, 555. to remove snow from sidewalk, broker not liable, 591. to consummate exchange, 189. of one party to perform, 191. Failure to secure transfers to exchange, 193. to report loan barred commission, 235. of purchaser to execute mortgage, 274. of broker to sell, 457, 543. to consummate contract of sale, 458, 460. of proof, 1078c. to consummate exchanges of real estate, 189, 192, 193. of sale through deficiency in quantity, 451. of owner to give possession, 454, 464. of owner to execute contract of sale, 454, 456. of customer to take property, 551. Faith, broker acting in bad, required to refund commission, 163, 382, 554. broker acting in bad, forfeits right to commission, 290. vendor acts in bad, by giving commission to purchaser's agent, 401. broker not entitled to commission where party to exchange does not show good, 195, 438. broker not responsible for misrepresentations made in good, 165. broker required to show that he acted in good, 166, 166a, 290, 867a, 915, 921, 1012, 1042. principal revoking contract must act in good, 15, 290, 867a. broker undertaking to buy at exorbitant price not evidence of good, 290. False representations, 313, 314, 315, 319, 320, 321, 435, 454, 462, 1076. Father, contract signed by son by direction of insufficient, 18. Fault, broker entitled to commission where failure not caused by his, 449, 464, 488, 533. sale failing without fault of principal, broker not entitled to com- mission, 122. to entitle broker to commission failure must be due to principal's, 449. of either party barred broker's commission, 558. INDEX. 1013 [References are to sections.] Fictitious purchaser, 314. Fidelity. See DUTY. Fiduciary relations, 35, 57, 291, 311, 314. Financial responsibility of purchaser, 40, 41, 157, 158, 158a, 300, 314, 4.12, 458, 464, 515b, 515c, 558, 580a, 628, 694b, 815, 1040a, 1053b. conditions, 463. Finding a purchaser, 11, 17, 42, 79, 113, 119, 129, 136, 397, 398, 462, 464, 465, 482, 513, 523, 538, 712c, 955. after revocation, not entitled to commission, 516. one willing to exchange, 188. for plaintiff as procuring cause excludes co-operation, 219. Findings by the court, 1048-1053c. special by jury, 1099. Fire, rebuilding after a, 42. First broker who succeeds entitled to commission, 41, 141, 445. entitled to commission by second's relinquishment, 515. failure to give notice, 291. broker's claim for commissions binding, 211. mortgages, agent to invest confined to, 264. payment failing, contract to be void, 549. employer given first right to purchase, 320. broker entitled to commission by second's interference, 444. payment, broker entitled to excess from, 484. payment failing, contract to be void, 549. cash payment, when not a condition precedent, 557. Fixed price. See PRICE FIXED. Foreclosure of mortgages, 262, 500a. Foreign principal, 42, 328a. Forfeitures, 41, 147, 290, 291, 297, 313, 320, 462, 556, 557, 558, 572. Forgery, 38, 351, 574. Forms, see Index to Forms, 1052. Fraud of broker authorizes his discharge, 16. broker selling to resell no, 126. broker buying at inadequate price by, 130. land conveyed by grantor in, of creditors, 155. mortgage taken by lender, bound by agent's, 62, 268. of agent in appropriating money to pay off mortgages, 273. of agent chargeable to principal, 313. of broker against his principal, 175a, 314, 641a. of broker against third persons, 315. of sub-agent, 316, 390. of principal against broker, 317, 656b. of third persons against broker, 318. of principals inter se, 319. debatable acts of broker not constituting, 320, 487. points of practice in, 321. 1014 INDEX. [References are to sections.] Fraud of broker, authorizes his discharge Continued. joint owner condoning liable, 329. brokerage contract not <3et aside for, 348. of sub-agent, broker liable for, 390. of broker may give rise to action of tort, 414. Fraudulent representations to principal by third persons, 454. G General agent, 6, 356. Gold, loan payable in, 575. Goods exchanged for land, 467. Grantee, failure to insert name of in deed, 311. Gratuities, 466, 558, 560c. Gross price changed to net, 485. Guaranties, broker to sell does not authorize, 112a. for land sold at public sale, 403a. Guardian of minor or insane person, 57, 62. H Heirs, rights of, 555. Homestead and exemption laws, 239. Horse, 454. Hotel, 31, 781, 988. Houses, sale of, 69, 454, 493, 493a, 830. renting of, 19. Husband and wife, 39, 183a, 454, 774, 826, 908, 1022, 1057. Identity, 50, 320, 831a. Ignorance of contract by holder of record title, 540. of principal of efforts of broker, 454. of agent's double employment, 578, 1074. Illegal purposes, 37, 326. contract, 327. declaring bonds, 276. commissions, recovery of denied, 522. sale of bonds, broker not liable, 280. Illinois, contract for sale of lands must be in writing, 79b. doctrine as to use of seals, 592. contract with broker to sell lands must be in writing, 590. Immaterial, when reasonable time, 616. knowledge by principal of act of attorney in fact, 623. INDEX. 1015 [References are to sections.] Immediately, means in a reasonable time, 580. Immunity obtained from liability, 601. Implied powers, 328, 394a. authority, 18. contract, what broker must show to recover on, 712a, 883a, promise, 12, 162. charge error that no leases are made except through brokers, 201. Improvement, when evidence of inadmissible, 783b. broker without authority to authorize permanent, 42, 372. note payable on vendee making certain, 461. Inability to perform, 15, 41, 380, 392, 454, 458, 460, 462, 488, 500, 506, 555, 556. Inconsistent, instructions held not to be, 989, 1016, 1032, 1041. charge in the alternative, 1041a. Incumbrances, 313, 315, 572. Indemnity, of agent, 299, 588a, 595. Independent inquiries, rendering false representations unactionable, 454. Indiana, contract with broker to sell land must be in writing, 590. doctrine of quantum meruit applied to entire contract, 546a. oral contract employing broker, wherever made, invalid, 590. Indirect acts insufficient to establish contract relations, 69. acte which establish contractual relations, 69a. Individual liability, when principal exempted from, 38, 62, 328n. Individually, receipt signed by broker binds him, 383. Infant, guardian of, 62, 220. may in certain cases authorize another to act for him, 2. Inference of authority, what insufficient to warrant, 381. of law, reasonable price an, 17, 292. Influence, defendant may show what other agents exerted, 819. of vendor and agent, 806. Information, 70, 282, 290, 314, 382, 399, 448, 557. Injunction upon sale, broker entitled to commission, 118, 469. Inoperative, mere insertion of word in contract without consideration, 18, 19. Inquiry from broker a* to price of land, indicates representing another, 42 la. Insanity, 347a. Insolvency, 57, 464, 630. Installments, payments in, 21, 67, 299, 313, 470, 493a, 570, 640a. Instructions, agent must follow closely his, 363. broker departing from liable. 350. broker securing lease in violation of, yet entitled to commission, 221d. sub-agent violating, 395, 520. See also VIOLATING INSTRUCTIONS. Insufficient, allegation of bringing parties into touch, 645. 1016 INDEX. [References are to sections.] Insurance, 41, 325, 567. company, broker not agent of, 71. broker entitled to commission in stock of, 468. Intention of parties shown by subsequent dealings, 761a. Interest or interests. contract coupled with an, 16. power coupled with is an interest in land itself, 16. disposition of principal's in subject matter of agency, works revoca- tion, 22. fraudulent purchase of, 57. undivided, 63. of tenant in common, 64. consolidation of, not a sale, 66. or title in properties exchanged, broker has no, 172 in land as fee for procuring loan, 251. broker to procure loan, not authorized to collect principal or interest, 255. broker liable for failure to collect, 270a. adverse, 290, 294, 345. concealment of by broker, 291, 315. and insurance clauses in contract, 557. when broker is and when not liable for, 322. date from which recoverable on commissions, 322. broker obtaining hostile to principal, 323. broker to collect, has no power to collect principal, 355. broker acting in, for others, cannot share in transaction for principal, 388. competing, 558. of the parties, courts to protect, 17, 571. purchasers had in the land, 816. whether or not entitled to on commission question for jury, 903. liability for commission of broker depends on real parties in, 487a. of minor, 914. too high authorized setting verdict aside, 1058. owning but a half no excuse for not paying broker, Iu4a. Interfering broker, 178, 399, 424, 444. Interlineation. See ALTERATIONS. Intermediation, purchase from owner without broker's, 481. Interpleader, when bill of allowed, 630, 657. when not entitled to, 658. evidence in, 777. Interpretation. See JUDICIAL CONSTBUCTIONS AND INTKBPBETATIONB. Interview, 24, 370, 988. Intoxication, 60. Introduction of prospective purchaser, 68, 169a, 450. INDEX. 1017 [References are to sections.] Invalid, when contract not, 1092. sale, broker not entitled to commission for, 433. Iowa, doctrine of quantum meruit applied to entire contract, 546a. Irrevocable, mere insertion of word in contract, without consideration, inoperative, 18, 19. Irrigation, 66. Issues, 184, 867-873. Joint liability, 407. owners, 42, 125, 125a, 319, 329, 960. Judgment for full commission error when loan fails, 250. unauthorized release of by broker, 238. Judgments, 1065-1071d. Judicial sale, 115. constructions and interpretations, 3, 367, 580, 582, 602a, 1001, 1079- 1132. Jury, whether broker entitled to commission for both auction and private sales, question for, 138. to determine value of land exchanged, 194. charge properly refused that no leases are made without brokers, 201. Jury, improper to submit to, whether loan broker authorized to release lien of judgment, 238. agreement as to commission to broker to procure loan a question for, 253. whether, in taking mortgage with wrong description, broker guilty of negligence, a question for, 267. improper to charge not bound by any rule in fixing damages, 300. questions to be determined by, 888-929c, 1131. instructions to, 930-1047H. Justice, amendments allowable in furtherance of, 673. K Kansas, doctrine of quantum meruit on entire contracts prevails in, 546a. Knowledge of agent binding on principal, 258. of pool and acquiescence in by principal, 371. by broker that principal owns but part of premises, 472. sometimes immaterial to constitute ratification, 623. by principal of unauthorized contract a prerequisite to ratification. 17, 624. ratification not shown by acquiescence without, 618. taking conveyance from agent with, of fraud, 314. 1018 INDEX. [References are to sections.] Knowledge of agent binding on principal Continued. when facts not within his, broker not liable for misrepresentations, 320. by principal that agent represents both parties binds, 560. effect of broker's withheld from purchaser, 618b. Land warrants, agent buying liable for value of land, 3o8. interest in as commission, 251. sale of public, 146. withdrawal from sale entitles broker to commission, 120, 552. mortgage confined to that designated, 239. owned by bank, 328p. in lieu of cash, 369. value of to aid jury, 194. authority to locate and convey, 339. not necessary to describe in petition for commission, 59. vendor cannot, by including other, escape liability for commission, 454. employment of broker to measure, not to sell, 594. Law, reasonable price inferred by, 610. vendor secretly paying commission to vendee's agent against policy of, the, 290. custom must be general before it will be declared, 598. of place of performance, when it governs, 1128. raises presumption where usage proved, 599. improper to submit question of to jury, 929a, 929d. contract held not to be in violation of U. S. land, 1100. agent authorized in fact, but inoperative in, no recovery against, 18. contract of employment void by law of state where made void every- where, 433a. Lawyer. See ATTORNEY AT LAW. Lease, power to sell does not include power to, 167, 202, 337. exchange defeated by broker not entitled to commission, 177. value of services of broker in negotiating, 196, 570. lessor refusing to accept, 22, 197. broker to sell does not earn commission by procuring, 198. option not exercised by taking, at lower rental, 199. with privilege of purchase equivalent to sale, 200. charge properly refused that implied none were made except through brokers, 201. broker secretly securing to himself holds as trustee, 203. entitled to commission for procuring lessee, 203a, 204. to earn commission must negotiate lease or exchange that principal can perform, 204a, 438. power to do all things concerning real estate authorized, 205. waiver of tenant's privilege of purchase, 206. INDEX. 1019 [References are to sections.] Lease, power to sell does not include power to Continued. broker empowered to collect rents, not entitled to commission for securing, 207. broker for tenant has no claim on lessor for commission, 208. broker to secure lessee not entitled to commission for option, 209. in action for commission, owrfer can show lease to another, 210. broker bound by first claim for commission and cannot increase, 211. broker securing lease for five years, sale at second, loses remaining commission, 212. where sub-letting forbidden, oral assent of agent unavailing, 213. by owner after broker's contract ended, not entitled to commission, 214. broker bringing about the sale of a, entitled to commission, 215. sale of frustrated by lessor, broker not entitled to commission, 216. broker not entitled to commission where plaintiff refused to make, 216a. to highest bidder, broker preventing not entitled to commission, 217. in -action for commission for securing defendant can show it was merely tentative, 218. finding as procuring cause of, excludes co-operation, 219. broker to secure one for eight years to earn commission, 220. with privilege of purchase, 328j. not entitled to commission a/9 contract not a, 198a, 427. not entitled to commission until effected, 560. of real estate, 42, 167, 177, 196-321, 328j, 337, 427, 438, 812, 1082, 1091. broker not entitled to commission for procuring to irresponsible party, 22 If. broker barred commission where not renewed, 206a. broker entitled to commission though tenant defaulted, 207a. to another party not a renewal, 212a. when made by owner and tenant, broker barred commission, 214a. building destroyed before signed, broker barred commission, 216b. acceptance of by owner's lawyer entitles broker to commission, 221c. broker entitled to commission on one secured against instructions, 221d. when broker not entitled to any part of commission paid other bro- ker, 221e. not executed, broker barred commission, 499d. Legacies, real estate broker's commission for selling proper charge against, 34. Lender, refusing to consummate loan, broker not entitled to commission, 224. broker held not to be agent of, 256. bound by fraud of agent, 268. Lessee, broker to procure not entitled to commission for option, 93. broker of, securing lease to himself, holds as trustee, 203. broker entitled to commission, for procuring, 204. 1020 INDEX. [References are to sections.] Lease, broker to procure not entitled to commission for option Continued. broker procuring one who buys not entitled to commission, 198a. where proposed failed to give security, broker barred commission, 216d. although one procured by broker joined with co-lessee in making lease, entitled to commission, 221b. broker liable in damages for assuring responsibility of irresponsible, 271a. lessor, cannot refuse to accept lease and defeat broker's right to commis- sion, 197. broker for tenant has no claim on for commission, 208. right under receipt not affected by broker's secret understanding, 221. Letter. See CORRESPONDENCE. Liability of agent to principal. for fraud of third persons in privity, 314, 318. for interest on money received and not invested, 322. for negligently failing to deduct proper amount from purchase money, 270a. for understating price obtainable, 290, 412a. for amount of price withheld, 290, 309, 314, 321, 404, 414, 456, 481, 572, 630. for appropriating all the purchase money, 314. for fraudulent conduct, subject to action for breach of contract, 414. for overstating price of purchase, may be sued for excess, 298, 314, 806. for buying property for himself and imposing on buyer at higher price, 47. for representing persons adversely interested, loss of commissions 290, 321, 388. for fraud of sub-agent, 316, 390. to refund commissions when he has acted in bad faith, 323, 382, 674. for profits improperly realized, 314. for loaned money lost on insufficient security, 229. for money lost through negligence, 230, 349. for loss incurred through departing from instructions, 350. for clerk wrongfully buying principal's property, 301. for loss arising from not recording mortgage, 260, 349. for loss arising from loan, when examination of title undertaken, 261. for loss through improper concealment, 291, 314. for concealing name of purchaser for fear owner would advance price, 291. for having interest in property and concealing same, 291, 314. for concealing relations to lessee and asking lessor to reduce rent, 558. for sub-agent concealing his relations, 291, 588. for concealing purchaser's name and substituting fictitious, 41. for representing both parties, unless both knew, 208, 290, 314, 559. for whether principal prejudiced or not rule applies, 559. for appropriating money collected, 40, 314, 630, 642. INDEX. 1021 [References are to sections.] Liability of agent to principal Continued. for willfully disregarding material obligations, 22, 40, 41, 291, 298, 314, 321, 415. for misrepresentation as to incumbrances, 313. for negligence in procuring loan, 235, 431. for negligence in not reporting offer, 312. for loss from second mortgage, 264, 349. for loss of trade through negligence, 346. for fraud, 175a, 314, 499b. for importuning to reduce price to buyer, 314, 320, for failing to disclose best terms, 412, 412a. for inducing customer to forfeit contract, 313, 462. for acting in bad faith, 183, 290, 291, 314, 462. for taking title and refusing to convey, 35, 4G2, 5f*0. for profit in reselling, 139, 299, 1089. for representing worthless property as good security, 229. for money paid by purchaser and forfeited, 462, 630. for acting in the interest of the opposite party, 295. for advantage derived from violation of duty, 290. for placing cloud upon title, 514. for taking insufficient security for deferred payments, 300. for appropriating money to pay off mortgages, 273, 314. for securing land, under warrants, for less than value, 338. for negligently taking mortgage under wrong description, 207, 899. for failing to learn exact liability under mortgage, 270, 349. for understating mortgages, 41. for failure of purchaser to execute mortgage and make cash payment, 274, 556. for negligently overpaying vendor, 349. to account on sale of trust property, 35. as member of purchasing syndicate not entitled to commission, 29, 38, 405. for tax title acquired, 294. sub-agent unable to recover share of unlawful commission, 522. for property acquired at grossly inadequate price, 291. for erroneous rental statement, 558. for money received from a purchaser, 559. for failure to insure principal's property, 325. for improperly acquiring principal's property, 57, 290. for secretly purchasing with ostensible buyer, 314. for pool to divide commissions, 371. for buying what he was employed to sell, 558. for fraudulent act of guardian, 62. for deed improperly secured, 57. for deeds improperly secured and money appropriated, 57, 314. 1020 INDEX. [References are to sections.] Liability of agent to principal Continued. for note improperly taken and assigned, 572. for improperly entering satisfaction of judgment, 238, 1068. for money paid on mortgages, 243, 269. for the sufficiency of the security, 403. for loan defeated through wrong dimensions, known to broker, 249. for bonds declared illegal, 276. for principal's debt paid from rent receipts without authority, 386. for selling at lower price than authorized, 408. for violating instructions, 299, 300. for failure to collect interest due, 270a. for assuring responsibility of irresponsible lessee, -271 a. for interest acquired adverse to principal, 678a. Liability of agent to third persons. for fraud upon lender, 268. for employing sub-agent without authority, 24, 393, 398, 519. for contracts made in his own name, 41, 43, 76a, 383. for unauthorized sale of real estate, 300, 307b. for fraud in negotiating contract of sale, 315. for fraud in fiduciary capacity, 311. for misrepresenting incumbrances, 315. for excess paid by purchaser, 314. for excess paid, that owner would not sell for less, 298 ; contra, 25, 456. for fraud, 319. for fraud upon the court, 314. for acting for undisclosed principal, 279, 291, 601. for money to be repaid if sale failed, 383. to purchaser for money received in bad faith, 642c. for bonds sold without disclosing principal, 279. for purchasing prpperty without disclosing principal, 588a. for personal property withheld, 290, 315. on warranty of authority to sell, 300. for money before paid to principal, 385. to vendee for purchase money, 298, 321. for excess over price asked by vendor, 456. for fraudulent representations involving a nominal owner, 42, 315, 319. for stipulation beyjond scope of authority, 560. to refund purchase money on repudiation of contract, 563. for deceiving purchaser as to commissions, 315. for value of bonds criminally put on sale, 38, 574. Liability of principal to agent. for commissions. See COMMISSIONS AND COMPENSATION. for connivance with sub-agent in fraud of agent, 316. to compensate sub-agent for sale made after revocation, 521. to compensate if agency revoked after broker has buyer, 22. INDEX. 1023 [References are to sections.] Liability of principal to agent Continued. to compensate if agency wrongfully repudiated, 23, 299, 300, 317, 362, 454. agent or broker rendering valuable service may, on revocation, u for breach, 299. administrator employing broker personally responsible, 34. for commission, when he paid wrong broker, 318. for commission, on conveying property to defeat liability, 317, 487a. for price of property purchased, 588a. for commissions, on appropriating benefits, 24, 557. for commissions, on appropriating benefits, where employed by un- authorized third persons, 24. to broker, if he knew sub-agent violated instructions, 42, 316, 317. for revoking authority to collect rents, 22. for services in purchasing, although guilty of constructive fraud, 23. for warranty of authority to employ, 328n. what he must do to escape liability for commission, 331. when he cannot escape liability for commission, 362. when paying one broker no further liability attaches, 370. liable for commission on taking land in lieu of cash, 369. when liable on refusing to sell for commission, 374. when not liable for commission on refusing to sell, 375. on release of vendee liable to broker for commission, 380. tenants in common jointly liable for commission, 407. for misrepresentations defeating sales for commission, 454, 572. for commission depends upon real parties to bargain, 487a. for commission on changing gross to net in contract, 485. for share of profit on wrongful sale by sub-agent, 497. for commission on sale at lower price, unless fixed price required, 502, for half of remaining unsold land, 379. for misleading customer to buy through another agent, 444. for interfering to injury of broker, 444. for commission for sale effected by interfering broker, 444. for revoking authority and selling, 444. three brothers acting for family, to broker for commissions, 407a. when corporation not for commissions, 1075c. Liability of principal to third persons. for injuries through negligence, 42, 347. for fraud of agent through misrepresentations, 29, 99, 313, 314, 315. for fraudulent misrepresentations of sub-agent, 316. for commissions paid broker by opposite party, 163. for fraud of agent to extent of benefits received, 36. 99, 316, 329, 856. for loan lost through fraudulent knowledge of agent, 62, 268. for sale revoked on suit of vendee, 22, 130, 298, 404. on note and mortgage executed by authorized agent, 23. to purchaser for money paid to agent, 299, 384, 385. 1024 INDEX. [References are to sections.] Liability of principal to third persons Continued. to purchaser for money paid agent after hie authority withdrawn, 41, 53. what he must do to escape liability, 331. to purchaser for shortage in acreage, 299. when for act of insane agent, 347a. bound by representations by agent to purchaser of location of land, 451a. Liability of third persons to agents. employing broker without disclosing principal, 222, 398. vendor on refusing to sell, for commissions lost from principal, 300. purchaser for commissions on agreement of non-interference, 21. purchaser, for commissions, although broker had agreed to look to vendor, 588. Liability of third persons to principal. party cognizant of agent's concealment can not hold property against principal, 291. . vendor for commissions paid purchaser's agent, 40, 290. for profits realized through fraud of agent, 35, 314. for commissions paid broker, from party in default, 163. for commissions paid wrong agent through misconduct of vendee, 318. Liability between third persons nominal owner to purchaser for fraud of owner and broker, 42, 315, 319. R. R. company for bonds criminally released from registry, 38, 574. joint owner w.rongfully acquiring moiety, 319. joint owner for benefits received through fraud of agent, 329. License by State or municipal authority, 9, 124, 558, 576, 604, 628, 631, 800, 1037. to cut timber beyond power of broker, 330. a single sale, not doing business to require a, 576. internal revenue, 576. auction sale does not require a, 576. Lien, equitable, 29. broker has for commission on securities in his hands, 283. broker has for fees on funds to loan in his hands, 284. in the absence of contract, broker without lien, 285. where broker has, it exists only while he holds property, 286. of broker confined to securities affected, 287. broker has none for loan on trust estate, 288. expense of releasing falls en principal, 289. commissions assumed by vendee not a lien on property, 289a. demand of $10,000 to release defeated commissions, 514. broker entitled to commission for exchange defeated by failure to pay off, 177a. broker denied right to assert when exchange defeated by fraud, 284a. broker's on purchaser's interest not enforceable, 289b. INDEX. 1025 [References are to sections.] Lien, equitable Continued. what plaintiff must show to enforce for commission, 289c. Limitations and restrictions, 12, 14, 577. Limitations, Statute of. See STATUTE OF LIMITATIONS. Litigation by third persons, 473. Loan, broker for seller obtaining to buyer from seller, not entitled to commission from buyer, 232. broker procuring agreement to make insufficient, 225a. broker procuring less than asked, accepted, entitled to commission, 233, 429. broker entitled to commission on finding lender, 22Ca, 234, 430. broker not reporting barred commissions, 235, 431. in action for commissions for procuring not necessary to prove tender, 236. admissibility of correspondence to establish agency in making, 237. broker entering release of judgment, improper to submit question to jury, 238. broker's authority to provide mortgage for confined to land designated, 239. principal curing defect in title, lender then refusing, broker entitled to commission, 240. not made, broker must prove title not good, 240a. broker charging more, entitled to statutory commission for making, 241. Loan, broker entitled to commission for procuring, though principal refuses to take, 242. broker not entitled to commission unless loan made, 242a. broker to whom borrower paid commission his agent, 243. money put in bank subject to broker's check, not agent of lender, 244. owner himself securing, not liable to broker for commission, 245. owner refusing on one ground to take, subsequently estopped to set up another, 246. broker failing to secure, principal securing from same party bars commission, 247. broker to examine title and secure loan barred commission on failure by defect in title, 248. defeated through wrong dimensions known to broker bars commission, 249. error to grant full commission when failure by defect in title, 250. interest in land to attorney for procuring, 251. verdict for broker for procuring set aside, 252. agreement as to commission for procuring a question for jury, 253. to purchaser on other property makes seller's broker his agent, 254. broker to procure, not authorized to collect principal or interest, 255. builder's, 282. broker procuring for trust estate has no lien thereon, 288. payable in gold, 575. 1026 INDEX. [References are to sections.] Loan, broker entitled to commission, etc. Continued. broker required to furnish in reasonable time after receiving ab- stract, 228a. broker who acts for both parties entitled to commission, 232a. broker not entitled to commission for loan defeated by misrepresen- tations of borrower, 249a. broker to procure loan may purchase land at mortgage sale, 255a. broker to procure without authority to transfer principal's note and mortgage, 337c. Loan company, securities payable at, not thereby agent to collect, 257. Loans on real estate, 71, 222-254, 564, 566, 575, 818, 1093. Loan, one employing broker to obtain liable for commission, 222. when refused for bad title broker not entitled to commission, 223. when lender refused to consummate, broker not entitled to commission, 224. when broker not entitled to commission for conditional loan, 225. procuring agreement to make not the same as procuring a, 225a. broker to recover for, must show on terms authorized, 226. on question of commission former agreement ignored, 227. reasonable value of broker's services for may be shown, 228. broker liable for loss on insufficient security, 229. broker bound to make good money lost through his negligence, 230. bill for services for procuring separated to see if reasonable, 231. Loss, recovery should be limited to the actual, 572. Lots, power to sell in, 6, 18, 340, 494, 587, 961. sold out of order, broker not entitled to commission, 307c. M Maker, when and where warranted in paying note, 353. Manner in which written contracts with brokers should be construed, G02a. Measure land, employment to does not sustain claim for selling, 594. Meeting of minds, 33, 73, 290, 293, 305, 557, 630, 838b, 929b, 969. Memorandum, insufficient to satisfy statute, 606. sufficient to satisfy statute, 590. signed by auctioneer binds buyer and seller, 30. admissible in evidence, 734. Mental capacity, want of to employ broker, 200. Methods of earning commission's, 474. of payment, 478, 479a. Michigan, contract to sell land must be in writing, 79b. doctrine of quantum meruit on entire contracts, f>46a. Middleman, 36, 320, 475, 557, 559, 578, 578a, 602e, 626, 875, 977, 1088. INDEX. 1027 [References are to sections.] Mine, sale of, 12, 24, 34, 111, 300, 314, 315, 476, 559, 572, 601. Mineral and gas deposits, 719b, 1025. Minor, guardian of, 57, 62, 220. Miscarriage of notice, 454, 458. of sale without fault of principal, 122. Misconduct of broker, 313. Mislead, whether plaintiff attempted to question for jury, 920. Misrepresentations, 40, 41, 165, 183, 290, 296, 298, 299, 313, 315, 318, 320, 328n, 451, 454, 514a, 572, 601, 862a. Mississippi, doctrine of quantum meruit on entire contract, 546a. Missouri, contract with broker to sell land must be in writing, 590. contract to sell lands must be in writing, 79b. doctrine of quantum meruit on entire contracts, 546a. Mistakes, 181, 321, 341, 341a, 390a. unless pleaded and proved joint purchaser bound for whole commis- sion, 579. Misunderstanding of contract by principal, 557. Modifications, 22, 24, 411, 41 la, 458, 477, 479, 906a, 943a, 954a, Money, broker to sell can take nothing else, 342. broker has no right to receive Mexican, 343. broker for seller accepting from purchaser against public policy, 559. received by broker from purchaser belongs to principal, 559. broker advancing and taking deed to self, holds absolutely, 368. broker to sell includes authority to receive purchase, 328e, f. discharging trust by returning earnest, 295a. owner allowed that withheld by broker, but denied recovery of com- mission paid, 554a. petition for commission from collections must aver their sufficiency, 653a. counts. See COMMON COUNTS. Moral obligation, supports subsequent written promise to pay commis- sions, 590. sufficient consideration to collect note on void contract, 433d. Mortgages, 41, 239, 258-275, 314, 386, 483, 558, 1051. Mortgage, authority to provide confined to land designated, 239. purchaser bound by agent's knowledge and can not dispute, 258. mortgagee's right to have reformed, 258. broker selling under power in need not inform mortgagor, 259. broker failing to record liable for loss, 260. broker failing to secure extension of, 54. Mortgage, broker liable for loss through unpaid, 261. broker not entitled to charge expenses for foreclosing personal mort- gage to principal, 262. power to sell does not include power to, 263. broker to invest money confined to first, 264. broker making loan, knowing of prior, principal's subordinated, 265. 1028 INDEX. [References are to sections.] Mortgage, broker liable for loss through unpaid Continued. power to purchase gives none to secure by mortgage, 266. whether agent taking by wrong description guilty of negligence ques tion for jury, 267. taken by lender bound by fraud of agent, 268. payment on to seller's agent did not bind mortgagee, 269. broker liable for negligence in failing to learn liability under a, 270. broker liable for loss on taking on other and not on land sold, 271. broker securing conditional sale of, not consummated, not entitled to commission, 272. fraud of broker in appropriating money to pay off, 273. failure of purchaser to execute mortgage barred commission, 274. in computing commission mortgage treated as part of price, 275. authority to sell for specific sum did not authorize part cash and mortgage, 422. broker to procure loan may buy at mortgage sale, 255a. when borrower entitled to cancellation of note and, 255b. when to be given owner entitled to know the purchaser, 274b. when should not be added to increase broker's commission, 275a. broker without authority to transfer principal's note and, 337c. waiver by party to exchange that other assume, 515f. when owner entitled to money which should have been paid on, 572. Mortgagee's interest in property, 274a, 539. Motions, 666, 666a. N Name of purchaser, concealment of by broker, 291, 314, 446, 487, 525, 530, 530a. Nebraska, valid conveyance or enforceable contract to entitle broker to commission, 41, 1129a. contract with broker to sell land must be in writing, 590. doctrine of quantum meruit on entire contract, 546a. contract to sell lands must be in writing, 79b. Necessary allegations and proof to enable broker to recover commission, 637a. Negative, proposition not proved until inconsistent with, 582. Negligence, 230, 260, 261, 267, 270, 271, 325, 346, 347, 347a, 349, 572, 899, 913. Negotiations, where neither broker selling nor principal had notice of other's, 489. owner misleading customer to buy through another liable, 444. owner breaking into and selling to customer liable, 444. unauthorized not ratified by sale to customer, 415, 443. with two jointly, sale by owner to one bars commission, 432. INDEX. 1029 [References are to sections.] Negotiations, where neither broker, etc. Continued. with one, and sale by owner to him and another bars commission, 437. not ripening into contract broker denied commission, 458a. Net rental, meaning of the term, 171. price, 481, 482, 483, 484, 485. Neutral, principal may remain as to broker's claims for commission, 581. New Hampshire, contract to sell land must be in writing, 79b. New Jersey, contract to sell land must be in writing, 79b. contract with broker to sell land must be in writing, 576, 590. New York, contract with broker to sell land must be in writing, 590. New trial, error to grant to set up exercise of option, 111. Nominal sale, broker not entitled to commission for. 116. damages, when broker restricted to recovery of, 300, 358, 563. purchaser, 487, 607. owner, 315, 319. Non-performance, 488. Non-suit, 865, 1075a. Non-resident employing broker, 11, 42, 328a. owner, one buying from through agent bound to ascertain extent of authority, 18. purchaser, 314. Notes, promissory, 255b, 314, 337c, 351, 352, 353, 354, 355, 356, 357, 461, 433d, 462, 483, 566, 572, 574, 584a, 817a, 817b, 1047. purchase money, duty of principal to collect, 420. See also PURCHASE MONEY. Notice, telegraph company not agent of owner, 80. to partnership of revocation of authority, 37. when not necessary, 259, 799. terminating agency, 15. how must be given to bind principal, 359. to principal by broker on finding customer, 360, 471, 632a. when waived, 361. of revocation, 15. miscarriage of, 454, 458. absence of deprives of right to commission, 489. principal selling before expiration of time without, 490. immediate means in a reasonable time, 580. failure to instruct as to not error, 1009a. in an exchange knowledge by broker of taxes not notice to the other party, 36. of customer by broker, and sale after by owner, 454. Novation, 425, 557, 560, 588, 1096. Null and void, 57, 59, 279. See also VOID. Nudum pactum, 19. 42, 174, 303, 462. 1030 INDEX. [References are to sections.] o Object, defendant can not when sale for less than broker claims, 827. Objection to price of horse and sale by vendor to another, broker entitled to commission, 454. after acceptance that purchaser unable to pay unavailing to defeat commission, 454. to terms of sale evidence that conformed to directions given, 368. Objectionable, instruction not, as submitting an issue not pleaded, 932. Obligation, release of vendee from, 380. Obligations, plaintiff bears burden of proving discharge of, 716. owner not under to extend time to broker, 15. of married woman under Pennsylvania law, 39. broker disregarding cannot recover commission, 290. fraud of agent relieved principal from, 314. purchaser putting lot to objectionable use, did not relieve from to pay broker, 557. when not relieved from to broker for commission, 42. See also DUTY. Offer to pay broker, when it does not show employment, 173. failure of broker to report, 31 sub-agent obtaining in advance of bids, 395. reporting in excess of that given, 491. of same amount previously made by proposer to owner, 568. Office of lender, note payable at not authority to collect, 566. Ohio, contract to sell land must be in writing, 79b. Opinion in writing of customer's attorney admissible in evidence to show defect in title, 730a. Opinions, as evidence, 730a, 776, 776a, 825, 975a. public, intensifying insufficient consideration, 21. Options, sales, exchanges, leases, loans, etc., pt. 2, Sec. 82-289a. Options, 23, 34, 38, 79, 82-111, 199, 314, 485, 557, 691a, 691b, 1033, 1061. contract to take over net price an agency, not an, 82, 1083. broker to procure entitled to recover compensation, 83. subject to revocation, principal liable to broker on finding purchaser, 84. broker to sell, procuring mere, not entitled to commission, 85. customer exercising, broker entitled to commission, 86, 96. where principal held only at time of sale, his liability, 87. broker who took to buy, not agent to sell, 88. exercise of revokes contract of agency to sell, 89. agreement to sell, etc., a mere, 90. sale by owner subject to, not breach of contract, 91. on sale under an, broker not entitled to commission, 92. broker to procure lessee, not entitled to commission for, 93. INDEX. 1031 [References are to sections.] Options Cont inued. owner concluding for whole tract, may refuse offer for part, 94. subject to withdrawal, no commission earned, 95. contract of exchange, held a mere, 97. when co-agent not bound by, 98. and title bond to insure sale, 99. at best price, means satisfactory to purchaser, 100. unexercised, subsequent sale, broker not entitled to commission, 101. broker to secure two, principal rescinds one, liable for breach, 102. broker not entitled to commission for procuring part of, 103. broker obtaining price from owner, a naked, 104. given and extended, broker acting as purchaser, 105. error to prevent defendant showing how made to purchaser, 106. defendant giving broker, estopped to claim purchaser, 107. defendant may show purchaser took subject to securing adjoining lot, 108. what owner may show to corroborate claim of, 109. held not expired when sale made by owner, 110. error to grant new trial to set up exercise of, 111. to lease not exercised by taking at lower rental, 199. broker to secure lessee, not entitled to commission for securing, 209. power to sell does not include power to give an, 337b. evidence showing contract an, and not a sale, 691a, 691b. construed a contract of sale, and not an, 82a. contract of not within the statute of frauds, 83a. to purchase as well as to sell, 84a. construed a contract of, 85a. death of owner before exercise of did not bar broker's commission, 85b. owner giving entitled broker to commission, 89a, though word "option" used, held a contract to sell real estate, 90a. holder of not necessarily an agent to sell, 104a. broker having may sell for more without accounting, 105a. broker not entitled to commission after principal gives an, 108a. contract held to be both an option and brokerage, HOa. to sell realty denned, 113b. change of sale to accepted by broker did not bind principal, 427a. broker selling more than authorized by, 299. owner entering into instead of sale to broker's customer, 450. contract of not capable of specific performance, 462. Oral agency may be withdrawn by parol, 22. action ex delicto maintainable on parol contract, 79d. agreement to act as sales manager upheld, 162a. contracts may be made by brokers between themselves. 371a. written agreement to sell realty can not be modified orally, 411a. 1032 INDEX. [References are to sections.] Oral agency may be withdrawn by parol Continued. contract can not take property out of hands when held by written, 492b. agreement, when admissible in evidence, 321. contract of agent sub-letting unavailing, 213. contract, broker to make written can not make, 363. authority, broker under can not bind by written covenants, 364. contract of broker binds unnamed principal, 583. contract followed by written, 492. evidence, 749, 749a, 769, 831, 833. Owner, 21, 42, 80, 81, 88, 89a, 92, 104, 105a, 109, 110, 125, 142, 142b, 169, 210, 214, 222, 245, 246, 302a, 341a, 347, 370a, 399a, 409a, 413, 416a, 450a, 451a, 476a, 479a, 481, 482, 485, 499c, 499e, 514a, 554a, 596b, 602b, 612a, 612b, 624a, 692a, 695b, 696a, 699a. Parol. See ORAL. Part cash and mortgage, when not authorized, 422. Part, on concluding option for whole tract, owner justified in refusing offer for, 94, 458. broker entitled to commission for selling, entitled to same rate for all, 495, 496. principal must accept or reject as an entirety, 24. principal can not defeat commission by indirect sale of, 454, 458. knowledge by broker that principal owns but, 472. broker to sell entire tract must do so to earn commission, 496a. broker barred commission for selling in different acreage portions from that prescribed, 496c. Partial payment, broker entitled to commission on. 570. performance insufficient to earn commission, 509. payment of price, when must be shown, 557. performance affords no right in equity, 589. Participancy in wrong, absence of, 497. in exchange, without employment, does not earn commission, 162. Particular point, immaterial if principal and customer agree generally, 557. Parties, together, bringing, though they contract on different terms, 532. to the bargain, liability to broker for commission depends upon real, 487a. to actions, 630, 656a. Partition, sale frustrated through failure to, broker entitled to commis- sion, 508. Partnership, 22, 25, 37, 38, 313, 535, 563, 576, 584, 630, 689b, 760, 814. Payable on sale, commissions are, 498. when contract made with purchaser, commissions are, 499. INDEX. 1033 [References are to sections.] Payable on sale, commissions Continued. on receipt of price, broker not entitled to commission before, 503. upon completion of transaction, commissions are usually, 504. note at office of broker, not entitled to collect, 566. commission out of last cash, must aver same, 653. Payment by defaulting vendee, broker entitled to commission on, 500, 506. broker entitled to excess as commission from first, 484. Payment, contract to be void if first failed, 549. Payments, deferred not collectible by broker, 112a. broker not entitled to commission for contract differing as to de- ferred, 503a. vendors not required to accept checks for, 420b. of commissions as collections made, 440a. written contract supercedes rule as to commission, 492c. Penal, contract held to be, requiring strict construction, 585. Penalty provided exclusive, 576. Pennsylvania, laws of, 38, 576. contract to sell lands must be in writing, 79b. Pension, 54. Performance, mere approval of contract not acceptance of, 567. when law of place of governs, 1128, 1129, 1129a. partial entitles broker to recover neither oa contract nor on quantum meruit, 509. recovery without showing, 641. where broker not entitled to commission as for full, 546. when full does not take case out of statute, 590. contract by, 455, 567. Performed his undertaking, broker not entitled to commissions until he, 546. 556. Permanent improvements, 42, 372. Personal contract, promise by administrator, 34. action against trustee, 35. acts undelegatable, 4, 5. property, when broker can not take, 290, 315. Petition or complaint, 160, 632-656d. defective, 160, 632e, 633, 634, 649, 650, 652. failing to prove agreed may receive reasonable compensation, 639. demurrable, 632e, 643, 644, 648, 649, 649b, 650a, 654, 655, 656c, 659- 665. insufficient, 643, 645, 649. failing to show written contract, alleged benefits immaterial, 647. Plantation, interpretation of broker's authority to sell, 1124. Plat and sell, a contract with broker to, 147, 570. Pleadings, practice and judicial constructions and interpretations, Pt. 5, Sees. 559-1132. Pool to divide commissions, 371. 1034 INDEX. [References are to sections.] Possession undisputed for years, authority of agent presumed, 366. when taking ratifies act of agent, 24. failure of owner to give, 454. Postal card insufficient as contract with broker, 601a. Postponement by purchaser, 365. Power of attorney, 18, 24, 26, 57, 63, 167, 202, 205, 259, 263, 266, 314, 332. of delegating authority, 2. Power of attorney, of becoming agents inherent, 3. to sell does not include to cut timber, 330. to sell does not include to lease, 202. confirming sales confers power to sell, 332. to do all things concerning real estate confers authority to lease, 205. to sell land acquired afterward, 333. to sell land sold but not conveyed, 334. to sell land on credit may receive payment, 335. to sell for settlement, when not violated, 336. to sell land, not to lease or exchange, 337, 167. to sell land not power to give an option, 337b. to locate and survey, not power to sell, 339. to sell in lots, cannot sell otherwise, 340. mutual mistake as to creates no liability, 341. unless clothed with by the owner, no one can transfer title, 413. to sell and convey land includes to give covenants of warranty, 417. in other States power must be specifically conferred, 418. to sell does not warrant contract to sell and convey, 418a. Practice, points of in actions for fraud, 321. Presumption of revocation by sale of property, 15. of agent's authority by undisputed possession for years, 366. after revocation that broker acts for purchaser, 421. that plaintiff was licensed from absence of evidence to the contrary, 576. that agent contracted with reference to usage, 599. .Presumptions, in general, 628. Preventing bidding, 217, 441. Price fixed, 12, 24, 42, 61, 142, 200, 422, 426, 502, 532a, 558, 559, 998. asking and obtaining does not establish employment, 17. when lower a sufficient consideration, 21. contract to take beyond net, agency and not option, 82. obtained by broker a naked option, 104. increased, broker entitled to more commission, 115. broker buying at inadequate by fraud, 130. lower, sale by second to client of first broker, 141. where broker might have gotten better, not entitled to commission, 290. mortgage treated as part of, 275. broker understating price obtainable, liable to principal for loss, 412a. INDEX. 1035 [References are to sections.] Price fixed Continued. broker not entitled to full commission until paid, 470. broker entitled to excess as compensation, 456. net to owner, broker does not take the excess, 481. net, broker selling thereat not entitled to commission, 482. net to owner and note for excess to broker, 483. net, broker entitled to commission from first payment, 484. owner changing gross to net liable for commission, 485. commissions payable on receipt of, 503, 570. sub-agent selling at reduced not entitled to commission, 524. broker guilty of fraud in asking reduction of, 314. broker secretly learning and sending customer, 399. broker not entitled to commission for sale at less, 426. principal liable for commission for sale to customer at lower, 502. sub-agent not entitled to recover for sale at lower, 524. sub-agent entitled to commission, though concealed name of buyer, 525. if payment of necessary, must be shown, 557. receipt of before broker entitled to commission. 570. reasonable inferred by law, 610. broker can not collect fee from, 373. when told by broker of prospective purchaser owner may then raise the, 477a. broker's contract required owner to fix within a reasonable time, 612b. Prima facie evidence, contract signed by purchaser, 117. evidence of title, contract to convey, 159, 190. case, 57, 866. Principal and agent, 15, 36, 51, 108a. broker to procure loan not authorized to collect interest, 252. approval of, 47. signature of by agent, 74, 75, 76, 77. what he must do to escape liability, 331. paying one broker not liable to another, 370. selling, broker may recover on a quantum meruit, 511, 512. paying commissions before purchaser withdraws, can not recover, 654. Privity, 11, 25, 35, 314, 318, 393, 454. Proceeds, commissions payable from, 223, 495, 501. Procuring a purchaser. See FINDING A PTTBCHASEB. Procuring cause of lease, 219. Procuring cause of sale, 17, 25, 305, 443, 446, 471, 489, 507a, 743, 809b, 934, 934a, 934b, 954, 994a, 1024, 1032. cases where broker held not to be, 292, 507. Procuring cause of the transaction a question for jury, 896. Profits, when broker liable to principal for, 23, 35, 139, 314, 329a, 565. when principal liable to broker for, 16, 300, 320, 497, 497a, 1103, 1104. 1036 INDEX. [References are to sections.] Profits, when broker liable to principle for Continued. broker to have part of, not entitled on failure by defect in title, 535. broker to share in profits not a partner, 584, 584a. anticipated may be recovered as damages, 299, 300. Property, description of, 59. accepted in lieu of cash, 369, 376. broker purchasing not entitled to commission for sale, 389, 558. fact that principal does not own does not bar commission, 454. renting of, 558. Proportionate commissions, 440, 447, 493, 632a. Proposition, counter, 56. not proved until inconsistent with negative, 582. instruction in regard to erroneous, 968. Public policy, doctrine of, 314, 559, 576. Puffing, 586. Purchase money, 16, 41, 368, 373, 501. See also NOTES FOB. receipt of broker for bound owner, 385a. when receipt for not performance of contract, 297. on executing contract owner entitled to paid portion of, 297. broker's right to commission not defeated because to be paid from, 501. paid, repudiation by vendee bars recovery, 23. broker without authority can not retain commission from, 373. failure to return entitles broker to commission, 454. privilege of, 42, 200, 328 j. by agent for himself, circumstances authorizing, 389c. Purchaser or vendee, 41, 84, 100, 105, 106, 107, 108, 117, 129, 131, 136, 145, 146, 180, 254, 258, 329a, 380, 384, 385, 387, 388, 422b, 437a, 450, 450a, 451a, 460, 465, 483a, 487, 499a, 515b, 515c, 596b, 603a, 612c, 614a, 618b, 630, 695b, 715a, 716a, 719b. suing to recover money paid to vendor's agent, 728a. bona fide, 607. acting for another, 452, 487. ostensible, "314. refusing who knew right length of lot, broker barred commission, 435. failure of to carry out contract, 460. paying more than authorized, broker entitled to commission, 505. each bound for the whole commission to broker, 579. Q Quantity contracted for, broker entitled to commission on, 423, 451. broker not entitled to full commission where shortage is found, 451. purchaser may recover for shortage in acreage, 299. INDEX. 1037 [References are to sections.] Quantum meruit, partial performance insufficient to recover on contract or, 509. agent procuring responsible tenant entitled to recover on, 510. principal selling to customer, broker entitled to recover on, 511. principal selling for less than agreed price, broker entitled to recorer on, 512. in absence of express contract, broker may recover on, 513, 632a. in absence of fixed rate measure of broker's compensation, 513a. in some States recovery may be had for partial performance on a, 546a. subject of, 587. where sale not consummated broker must prove negotiations rendered fruitless by fault of land owner, in order to recover on a, 637a. instruction rightly refused that if entitled to anything confined to a, 1015. finding in an action on a, 1049. finding on express contract, finding againct, 1050. R Railroad, 38, 291, 526, 1000, 1005. Ranch, 454, 550, 1023. Ratification of contract, 24, 50, 57, 321, 557, 572, 619, 620, 620a, 621, 622, 623, 624, 728a, 797, 858, 895, 1030. what is not a, 18, 24, 295, 415, 458, 567, 618, 618a. once made, cannot be revoked, 24. Real estate, contracts for the sale of, 17. options on, 82-111. sales of, 112-148. leases of, 196-221. loans on, 222-257. mortgages on, 258-275. liens on, 283-289a. commission, proper charge on trust, 35. Reasonable bill for extra compensation, examined to see if, 231. care in selecting sub-agent, 394. commissions, items paid agents shown to be, 35. corporation liable to officers only for, 38. compensation, broker procuring option entitled to, 83. broker entitled on procuring lease, in absence of special contract to, 196. plaintiff entitled to recover excess withheld, less a, 298. net to owner, broker selling at excess entitled to a, 481. for finding a purchaser broker entitled ^to a, 557. subject of, 616. failing to prove, may recover, 639. 1038 INDEX. [References are to sections.] Reasonable bill for extra compensation, examined to see if Continued. price inferred by law, 610. time within which a power must be accepted, 26. for broker to perform service, 612. employment of broker continues for a, 612, 613. what is a, 611. when immaterial, 614. what constitutes a, 1080. value of broker's services in procuring loan, 228. value of broker's services recoverable in absence of express agree- ment, 615. Receipts, 41, 184, 221, 379, 383, 384, 385, 385a, 576, 772, 1072. Receiver, 62a, 314. Reciprocal obligations on principal as well as on agent, 290. Reconveyance of property, 301, 314, 607. Record, 260, 290, 540. Recoupment, 309, 321. Recovery of commissions, 564. of money from broker, 642. of commissions without showing performance, 641. upon implied contract, 712a. Refunding commissions, 320, 382, 572. Refusal to accept loan, 242. to take because customer does not own, 154. to exchange, when fraud no ground for, 155. by lessor to assign lease, 216. of purchaser to sign contract of sale, 298, 458, 517, 534. of owner to execute contract of sale, 313, 374, 374a, 375, 454, 456. of principal to appraise, 434. of purchaser, who knew real length, to take lot, 435, 451. of purchaser to take lot, where broker knew size, 451. of wife to join in deed, 454. Reject offer, when principal can not and escape liability for commission, 362. Rejected contract of sale, 642*. Relations, broker and sub-agent similar to principal and agent, 519. Release, 19, 57, 238, 289, 297, 379, 380, 462, 514, 1068, 1099. Relief, when denied, 31?. Relinquishment, 515. Remark, effect of, 1090. Remedies. See ACTIONS. Remedy, pursuing one barred any other, 414a. Reimbursement, 314, 595, 607. Rent, 22, 41, 199, 207, 314, 381, 381a, 386, 387, 510, 558, 827. INDEX. 1039 [References are to sections.] Renewal, waiver of privilege of, 206. lease to another not exercise of option of, 212a. Repairs broker authorized to make, not permanent improvement, 372. Reply, 612c, 630. that was not a ratification, 618a, Representations as to dimensions of property, 451. Representative capacity, broker not liable to third parties for his acts in a, 341b. Repudiation or rescission, 23, 24, 35, 41, 127, 300, 321, 436, 558, 924. Restitution before repudiation, 23. Restriction in chain of title, 43. Res gestae, 755, 834, 835. Retainer, when broker taking from purchaser allowable, 454. Retroactive, law requiring contract employing broker to be in writing not, 1125. Reversal, to work, errors must have been prejudicial, 1078a. Revived, agency terminated, not by subsequent acts, 15. Revocation of authority granted to agent, 13, 15, 22, 79, 84, 89, 283a, 292, 300, 328d, 358, 421, 446, 454, 510, 516, 521, 572, 632a, 684c, 802, 873a, 906a, 988, 1110. Rights, duties and liabilities of principal and agent, Pt. 3, Sees. 290-422. effect of concealment upon, 291. to commission not defeated because to be paid from purchase money, 501. Right to sell not implied by advertisement on land, 128. of broker to agreed commissions, 423, 423a. to withdraw if title bad, exercised, bars commission, 517, 534. of broker to commission regardless of title of customer, 533. Rights of third persons, 290, 386, 416. of broker depend on new contract, 411. Right to conveyance by agent, 462. to commissions, when modified, 479. to commissions, not affected by owner's suppositions, 528. of two heirs not acquired, 555. of action for commission when accrues to broker, 632b. of immunity, estopped from asserting, 601. Rival brokers, 137. 424, 515, 518, 608, 909, 1024. Sale, consolidation of interest not a, 66. employed to sell who secures a mere option, 85. by owner, subject to option, not breach of contract, 91. by owner before expiration of option, 110. if terms omitted, satisfactory to principal implied, 112. 1040 INDEX. [References are to sectlons.l Sale, consolidation of interest not a Continued. according to terms entitles broker to commission, 113. contract of, may be established by circumstantial evidence, 114. judicial, 115. nominal broker not entitled to commission for, 116. enjoined, broker entitled to commission, 118, 469. broker must effect to earn commission, 119. withdrawal from entitled broker to commission, 120. properties for others and cash difference, a, 121, 164. miscarrying without fault of principal broker not entitled to com- mission, 122. by wrong description, broker not entitled to commission, 123. single, not doing business to need license, 124, 576. forced with joint owner, broker not entitled to commission, 125. by broker to resell no fraud, 126. ineffectual where broker had no right to make it, 127. advertisement on land does not imply right of, 128. to find purchaser, none to make, 120a. agent buying at inadequate price by fraud, set aside, 130. agent becoming purchaser unknown to principal, set aside, 131. without effort accepted entitles broker to commission, 132. contract may require a, to entitle broker to commission, 133. at $350, when limited to $400, broker not entitled to commission, 134. at $1,500, after asking lower terms, unauthorized, 135. at $1,500, while land increasing in value, unauthorized, 18. without special contract, broker to earn commission requires a, 136. by one of rival brokers ends contract with others, 137. whether broker entitled to commission for both auction and private, a question for jury, 138. by broker of property acquired from principal liable to latter, 139. " without written authority excepted from statute of frauds, 140. Sale, by second agent to client of first, latter not entitled to commission, 141. by owner before sale by agent bars commission, 142. disagreement as to, acquiesced in by broker, bars commission, 143. for cash complied with by payment on execution of deed, 144. of public land, broker to earn commission must show what, 146. plaintiff to plat and sell and pay $150 an acre to defendant, a contract of, 147. broker failing to sell and owner selling to customer, broker not en- titled to commission, 148. power to make does not include power to lease, exchange, or mortgage, 167, 202, 263. lease with privilege of purchase equivalent to, 200. broker bringing about entitled to commission, 215, 491. of lease frustrated by lessor, broker not entitled to commission, 216. INDEX. 1041 [References are to sections.] Sale by second agent to client of first, latter not entitled to commission Continued. under power in mortgage not necessary to inform mortgagor, 259. conditional of mortgage, broker securing, 272. of bonds declared illegal deprives broker of commission, 276. broker selling bonds entitled to commission on procuring buyer, 277. broker not entitled to commission for selling bonds on buyer with- drawing, 278. delivering bonds, without disclosing principal, liable if null and void, 279. broker selling bonds in good faith not liable to trust estate for illegal, 280. authority of village to sell bonds includes authority to employ broker, 281. by agent to principal of his own property set aside, 321. power confirming, confers power to sell, 322. power to sell in lots confers none to sell otherwise, 340. broker to sell land can take nothing but money, 342. broker not liable for poor sale by sub-agent, 394. to others than syndicate by owner bars commission, 406. for all cash complies with authority for half cash, 410. broker to sell for half cash, remainder on time, cannot sell for all cash, 410a. Authority to make for specified sum is for cash only, 422a. at less than fixed price, broker not entitled to commission, 426. broker negotiating with two, sale to one by owner bars commis- sion, 432. void by statute, broker not entitled to commission, 433. broker unsuccessful with F. and sale by owner to him and others bars commission, 437. Unless exclusive, broker not entitled to commission on sale by an- other agent, 439. broker entitled on sale by owner to commission on share of two ten- ants in common, 440. broker who first succeeds in making, entitled to commission, 445. broker who was the procuring cause of, entitled to commission, 17, 305, 445, 446, 447, 454. by principal uninfluenced by broker, latter not entitled to commission, 42, 454. failure of broker to make a, 457. failure of broker to consummate contract of, 458. failure of by defect in title, 459. at net price, broker not entitled to commission, 482. by principal without notice to broker before time expired, 490. broker entitled to commission on sale of four houses, not entitled to proportionate for one, 493. 1042 INDEX. [References are to sections.] Sale by second agent to client of first, latter not entitled to commission Continued. commission payable on, and not on collection of deferred payments, 498. cases in which broker was held not to be procuring cause of, 507. frustrated through failure to partition, broker entitled to com- mission, 508. made after revocation of authority entitled sub-agent to commis- sion, 521. made at reduced price, sub-agent not entitled to commission, 524. to railroad instead of to syndicate entitled to commission, 526. other than contemplated, broker entitled to commission, 527. on making, broker not deprived of commission by defect in title, 533. defeated by want of title, which he knew broker, not entitled to com- mission, 539. failing by dispute over taxes broker not entitled to commission, 541. withdrawal of land from entitled broker to commission, 552. withdrawal and sale by owner to customer, in good faith, bars com- mission 553. failing because rights of two heirs not acquired, broker entitled to commission, 555. to customer after employment ended bars commission, 558. in trying to effect sale of real estate party may extravagantly extol, 586. for less than broker claims, defendant cannot object, 627. admitted, broker entitled to reasonable compensation, 615a. executed, when inadmissible in evidence, 767. of bonds released from registry through forgery, 38, 574. broker not liable to principal for money paid purchaser on reject- ed, 642a. of land by broker entitled him to commission no notice of revocation having been given, 1110. after appointment of a receiver, 62a. of land for fellow-broker, 76b. so construed and not an option, 82a. and also option to purchase, 84a. of real estate though word "option" used, 90a. broker having option may sell for more and not account for excess, 105a. option denned, llOb. power of broker limited to sell, 112a. broker entitled to commission for aiding in making a, 113a. broker entitled to commission for selling for more cash than required, 113b. broker entitled to commission for, though to person other than desig- nated, 113c. broker must effect or secure binding contract, 113d. INDEX. 1043 [References are to sections.] Sale of second agent to client of first, latter not entitled to commission. Continued. transfer by joint owner of half-interest a, 125a. by owner to broker's customer, 142a. by owner to broker's customer after employment ended, 142b. of land by mortgagee not a withdrawal of contract of broker, 274a. commissions payable on as payments collected, 440a. broker procuring cause of entitled to commission, 507a. not enough for broker to show his act, but one of chain of causes producing, 822a. when by principal a breach of agency contract, 23. Sales of real estate, 112-148. Sancho Panza Verdict, 1063, 1070. Sanitarium, 300. Satisfactory to purchaser, option, 100. principal, See TERMS OF SALE. School building, 327. Scope of employment, 18, 298, 521, 560, 564, 757, 992. of the petition, 1034. Seals and the necessity for their use, 592. Secret understanding, 221, 401. commission paid to vendee's agent, 401. Secretly employed, 166, 290, 291, 400. securing new term to himself, broker holds as trustee, 203. learning price of property, 399. Securities, 257, 283, 287, 357, 403, 630. Security, broker may be responsible for the sufficiency of, 229, 403. of real estate, broker effecting loan on, 533. "Sell," meaning of the term, 18, 26, 328h, 557. Sequence broken, and its effect, 448. Servant. Person to find purchaser, when not a broker but a, 8. Set aside, verdict for procuring loan, 252. Severable contract for effecting an exchange, 176. for effecting a sale, 560, 1116. Sharing commissions, 21, 291, 300, 305, 314, 396, 397, 398, 520, 522, 558, 632c, 695a, 791, 808. agreement between two brokers therefor, bars commissions, 371. profits, 497. Sign on property as for sale by agent, 42. "Signed," subscribed equivalent to, 78. Signature of principal by agent, 74, 75, 76, 77, 314. Silence, when equivalent to approval, 24. when it does not ratify an unauthorized act, 24. Silent where evidence is as to previous sales, 800. Skill, broker required to exercise that of calling, 402. Snow and ice, failure to remove from sidewalk, 591. 1044 INDEX. [References are to sections.] South Dakota, contract with broker to sell land must be in writing, 590. Specific performance, 18, 295, 307a, 314, 462, 559, 572, 630, 718, 762. Speculate off of his principal, broker forbidden to, 37. Stale authority, sale under will not be specifically enforced, 18. Statutory commissions, broker charging more limited to, 241. Statute of frauds, 10, 21, 34, 41, 83a, 140, 140a, 404, 433, 433a, 492, 590, 601a, 605, 606, 609, 668. of limitations, 28, 286, 607, 838a. Statutes, 433, 600, 773, 1093. Stipulation as to payment of commissions, 557, 570. Stock, commissions payable in, 468, 480. broker entitled to commission from sale of, 1095. Sub-agents, 11, lla, lib, 24, 25, 26, 42, 79, 291, 300, 316, 317. 390, 390a, 391, 392, 393, 394, 394a, 395, 396, 396a, 397, 397a, 397b, 398, 497, 519, 520, 520a, 521, 522, 522a, 523, 524, 525, 557, 558, 907, 912. Sub-delegated, acts that can not be, 5. Sub-letting, 213. Subrogation, when vendor not entitled to, 572. Substitution, power unauthorizing, 26. of contract for that sued on defeats, 638. Suppositions, broker's right to commission not affected by owner's, 528. Survey, 18, 26, 339. Syndicate, 15, 28, 305, 405, 406, 464, 526, 607, 1000. T Taxes, 41, 171, 529, 541, 542, 1085. Telegram must reach owner, when, 80, 81. broker failing to name purchaser in, 530. Telegraph company not agent of owner as to notice, 80. Telephoning, mistake in, 444. Tenant, agent in charge of real estate procuring, entitled to recover on quantum meruit, 510. broker for has no claim on lessor for commission, 208. petition to recover for services in procuring, 650. where tenant and owner made lease broker barred commission, 214a. broker entitled to commission on finding satisfactory, 221a. Tenants, owner liable for injuries to prospective, 347. lessor's rights not affected by broker's secret understanding with, 221. in common, 290, 407, 440. in common, interest of, 64. Tender, in action for commissions not necessary to prove, 236. of payment, when necessary must be shown, 557, 570. when not necessary, 436, 593, 625. on broker taking title to land purchased, principal may tender amount and demand deed, 595. INDEX. 1045 [References are to sections.] Tentative, defendant can show contract of lease merely, 218. Terms, when changed by parties broker entitled to commission, 175 broker to earn commission for loan, must show on same, 226 of sale, if omitted satisfactory to principal implied, 12, 112, 328b. making contract contrary to, defeats commission, 41, 409. of sale or exchange, commission earned when both parties agree on, 191, 532. of loan to be satisfactory to lender, on refusal broker not entitled to commission, 225. broker failing to disclose best, bars commission, 412. of agreement a question for the jury, 916. broker effecting sale on lower, 408. of half cash complied with by sale for all, 410. if agreed on right to commission cannot be defeated, 454. if broker departs from, principal ratifying cures, 557. of sale objected to. evidence that sale conformed with instructions, 668. of employment. See EMPLOYMENT, TERMS OF. Texas, doctrine of quantum meruit for partial performance of entire con- tract, 546a. Theater, unconsummated lease of, 216a, Theory of the case, instructions, 1008, 1034. Third persons, fraudulent representations by, 454. failing to buy by defect in title, broker not entitled to commission, 458. brokers not liable to for acts in representative capacity, 341b. Timber, sale of standing, 454, 511, 512, 572. land, alteration of contract to sell, 485. erroneous charge in regard to sale of, 991. agent to sell without authority to grant license to cut, 330. Time, principal selling before expiration of, 490. broker has no right to extend for payment of purchase money, 18, 61. directing broker to sell after expiration of, extends, 42. limit in, when does not defeat broker's right to commission, 454, 479, 482. what is a reasonable depends on circumstances in each case, 611, 1080. fact which failed to show extension of, 18. broker's employment continues for a reasonable, 612, 613. immaterial, where broker finds purchaser while employed, 614. extension of should be pleaded, 1101. when broker agreed to wait for commission until owner sold farm held to mean for a reasonable, 498a. owner entitled to reasonable to prepare abstract, deed, etc., 612a. owner bound to broker for reasonable, to find a purchaser, 612c. long lapse of, in bringing suit, bears on weight of evidence, 838a. 1046 INDEX [References are to sections.] Time of the essence of the contract, 15, 26, 556. for performance, whether waived, a question for the jury, 919. whether limit placed on, a question for jury, 922. evidence of length of, of land for sale, 750. Title papers, contract of agency ceases on delivery of, 14. owner not required to inform broker of restrictions in chain of, 43. abstract of, 23, 32, 179, 225, 228a, 248, 250, 476a, 501, 534, 570, 597, 612a, 999. defect in defeating sale, loan or exchange, 12, 156, 223, 314, 458, 459, 533, 535, 730a, 1071. supposed defect in defeating sale, 537. principal receiving good to property exchanged, 152. contract to convey not sufficient evidence of, 159. or interest in properties exchanged, broker has no, 172. suit for clearing, 514, 51 4a, 809. reserving right to withdraw if found defective, 517. when not necessary to show vendor has clear, 596. defect in defeating loan, 223, 225, 248, 248a, 250. petition for commission on passing of, defective, 649. loan refused for defective, broker not entitled to commission, 223, 225. loan refused for defective, broker entitled to commission, 240. loan refused for defective, broker to recover commission must prove, 240a. where broker undertook to examine, liable for loss from unpaid mort- gage, 261. broker knowing defect in, can not himself acquire, 345. unless clothed with power by owner no one can transfer, 413. Title, equitable, 311. cloud on, 514. principal securing good, invalidity of contract, unavailing, 454. contract drawn to bar commission in case of defect in, 459. customer reserving right to withdraw if defective, if exercised, bars commission, 517. time given to examine, 14. payment of commissions may depend on transfer of, 536, 596a. whether principal or another holds, broker entitled to commission, 538. sale defeated by want of, which he knew, broker not entitled to commission, 539. ignoranne of contract by holder of record, 540. taken by agent, principal may tender amount and demand deed, 595. when not necessary for broker to show vendor had a clear, 596. compensation of broker due on breach by vendor, although postponed by contract till title passed, 536a. when marketable in fee simple necessary to give broker right to commission, INDEX 1047 [References are to sections.] Tort, 40, 298, 321, 347a, 414. Transacting all business, agent may collect payment of note, 356. Transaction not in fraud of plaintiff, 126. receipt in another inadmissible, 184. consummation of, 570. broker acting for others not entitled to share in, 388. concluded without aid of broker, 454. Trusts and trustees, 35, 37, 50, 203, 280, 288, 295, 295a, 314, 345, 359, 404a, 576, 635. Trust company to buy and sell real estate not a broker, 8. Turpentine rights, fatal variance, 878. Typical cases in which sub-agent held entitled to commission, 523. u Ultimate facts must be pleaded, 632. Unauthorized condition, broker not entitled to commission for contract subject to, 547. Unavailing efforts of broker do not entitle to compensation, 290, 643, 558, 630. Uncertainty of identity, must be established by evidence, 831a. Unconscionable demand, amendment to set up refused, 667, 667a. Unconstitutionally of statute, 600. Undelegatable, certain acts are, 4, 5. Understanding contract of sale by principal unimportant, 557. Undertaking. See PERFORMANCE. Undisputed, if evidence on any given fact is, court should so instruct, 939, 1044. Undisclosed agreement to divide commission with purchaser does not bar right to commission, 545, 557. principal, 41, 279, 452, 583, 601. Undivided interest, 63. Unenforceable, where broker must be authorized in writing, contract with- out, 602, 603. Unexpert witnesses, evidence of, 766. Unilateral contracts, 20. Uninterrupted, to entitle broker to commission for sale negotiations must be, 544. negotiations after expiiation of time entitled broker to commission, 557. Universal, custom or usage must be to become a matter of law, 598. Unlawful commissions, sub-agent denied recovery of, 522. that which is contrary to law, etc., 559. Unlicensed broker, contract by not absolutely void, 604. Unsatisfactory, if any of the terms of the contract be, principal should object on that ground, 42. 1048 INDEX [References are to sections.] Unsuccessful negotiations with F. and sale by owner to him and others, bars commission, 437. Usage. See CUSTOM AND USAGE. Vacant property, 757. Vague, broker not entitled to commission for contract too, for enforce- ment, 551. Vagueness of terms of contract immaterial, if minds of parties met, 557. Values, 149, 185, 194, 196, 227, 228, 294, 416, 461, 558, 572, 615, 742, 754, 762, 782, 785, 796, 798, 801, 811, 1045, 1076. Validity of sale, when purchaser can not insist upon, 314. Variances, 41, 307a, 409, 428, 428a, 428b, 515a, 515d, 531, 550, 587, 704a, 874-887g, 938. Vendee. See PURCHASES. Vendor, 40, 41, 73, 143, 290, 374, 401, 420b, 436, 531. Verbal contract for sale of land, no rights in equity out of, 589. Verdicts, 252, 1046, 1054-1064, 1065a, 1065b, 1075b. Vested remainder, broker procuring purchaser on different terms for, barred commissions, 548. Village, authority to borrow money, 281, 328o. Violation of instructions warranted terminating agency, 15, 290. action by principal for damages for, 299. by sub-agent, 395. Voidable, deed not void but. 572. Void, broker procuring contract to be, if first payment fails, not entitled to commission, 549. where contract, by statute of frauds, broker barred commission, 433. contract by unlicensed broker not absolutely, 604. See also NULL AND VOID. Voluntary payment by defrauded party, no defense to agent, 693b. Volunteers, 443, 466. w Waiver. See also ACQUIESCENCE. of tenant's privilege of renewal binds principal, 206. of performance, 14, 23, 515, 515b, 515d. 515e, 515f. by failure to object to amended answer, 667a. of notice by principal, 361. of variance in contract by acquiescence, 450, 515a, 515d, 515e. of tender, 625. a question for the jury, 919. INDEX 1049 [References are to sections.] Warranty, power to sell and convey includes power to give, 26, 328k, 417. in other States the power must be specifically conferred, 418. of authority, 39, 300, 328n, 569. Washington, State of, contract with broker to sell land must be in writ- ing, 590. Whole value of property, broker entitled to commission upon, 185. price, tender of by purchaser, 557. Widow's man of business, fair dealing of impeached, 29. Wife and husband, 39, 51, 314, 454, 774, 826, 908, 1022, 1057. Withdraw, where right to exercised, broker barred commission, 534. Withdrawal of broker's authority to sell, deed not a, 57. of land from sale, under contract entitled broker to commission, 120, 552. of land from sale, contract to pay commission upon strictly con- strued, 585. of case from the jury, 636a. and sale by owner, in good faith, bars broker's commission, 17, 553. before contract, options with such liberty do not entitle broker to commission, 95. by purchaser after commission paid to broker, principal cannot re- cover, 554. sale by owner after, error to submit to jury, 917. Will, 5, 34. Witnesses, where instrument to be executed requires two, power must have same number, 26. Words and phrases. "Abbey Ranch," 550. "ability," 1132 (122). "able," 580a. "accepted," 567. "advertisement," 561. "agent," 3a. "all right, go ahead," 1132 (71). "amount," 1123. "any trade," 527. "as to loans made by us," 62. "bargain," 1132 (64). "bringing the seller and purchaser together," 33. "broker," 7. "brokerage," 8a. "changed by mutual agreement," 1047g (15). "complete," 1047h (15). "contributed," 1047h (7). "divide," 1086. "drunkenness," 60. 1050 INDEX [References are to sections.] Words and phrases Continued. "earnest money," 1132 (35). "efficient cause," 1047f (29). "entire," 1047g (7). "exchange," 1132 (104). "exclusive agency." 13. "for and on behalf," 58. "get an offer," 12. "hiring contract," 1047g (50). "immediately," 580. "in any event," 367b. "in full settlement." 662. "intent," 1047g (13). "influence," 1132 (127). "irrevocable," 16. "known," 465. "list," 1117. "my property," 48 Eldridge Court, 59. "my real and personal estate," 26. "negotiate," 18, 464, 1047h (20), 1082. "net cash," 485. "net rental," 171, 1132 (54). "offer," 445. "pecuniarily able," 1130. "placed in the hands of," 367. "prime cause," 1047g (23). "procured," 1047g (21). "procuring cause," 1047f (29). "real estate and note broker," 37. "sale," 121, 1132 (80). "sell," 18, 26, 328h, 367a, 557, 1132 (80). "sell, giving abstract," 1132 (82) "sell, in the principal's name," 1132 (65, 66). "showing," 557. "sold," 445, 1112. "solicit," 1005a. "subscribed," 78. . "taxes," 1085. "this week," 577. "timber," 1127. "title to the satisfaction of purchaser," 1126. "to get a deal," 455, 567. "upon consummation of exchange within 24 hours," 1132 (110)', "upon the terms named," 1132 (109). "when the sale is consummated," 1132 (98). INDEX 1051 [References are to sections.] Writing, contract to divide commissions must be in, 79. contract for the sale of real estate in many States need not be in, 419. contract hiring auctioneer need not be in, 605. contract required to be in, without unenforceable, 602. action ex delicto maintainable on parol contract, 79d. contract between agent and sub need not be in, 523a. contract between brokers to share commission need not be in, 583a. contract of employment of broker or middleman must be in, 60 2a. contract to purchase land not required to be in, 603a. Written contract, broker authorized to make, can not make oral, 363, 41 la. necessary, failing to show, rest immaterial, 647. Written instruments, alterations in, 293. construction of for the court, 897. 1052 INDEX INDEX TO FORMS. [References are to numbers] Advances, sale of building lots, vendor to make, 32. Agency, exclusive for fhe sale of realty, 3, 4. Agreement for purchase of farm land, 15, 16. for sale of land, 12, 13, 14. to be signed by purchaser at auction, 28. Attorney, powers of, 8, 9. Auction, agreement to be signed by auctioneer, 29. agreement to be signed by purchaser, 28. c Conditional sale, agreement for, 24. D Dwelling house, agreement for sale and purchase of, 18. E Exchange of lands, agreement for, 30, 31, 33. F Fruit, agreement for sale of crop of, 36. G Grass, agreement for sale of crop of, 35. I Instalments, agreement for purchase by, 16. L Lease-clause, agreement for sale with, 23. Leasehold or fee simple, contract of sale of, 20. Listing of property with agent for sale, 1, 2. INDEX 1053 [References are to numbers] Loan, employment of agent to secure, 7. Lot, agreement for sale of building, 25, 32. agreement for sale of in weekly payments, 17. M Mortgage, agreement to purchase subject to, 19. where part of purchase price to be, 21. N Nuisances, agreement for sale of land with provision against, 14. Purchase money, agreement that purchaser withhold part of, 26. of farm land, agreement for, 15. Purchaser, contract to procure, 6. B Receipt for deposit by purchaser, 27. s Sale of realty, contract for, 5, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 32. Timber, agreement for sale of standing, 34. Title, purchaser to retain part of purchase money until removal of de- fect in, 26. LAW LIBRARY UNIVERSITY OF CALIFORNIS LOS ANGELES UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. DEC3119M APR 51983 Form L9-Series 4939