The Supreme Court of Canada held that the agent who was the effluent cause of the sale was entitled to his commission altho the purchase was on altered terms and by associates of the person to whom the agent in troduced the subject. Stratton vs. Vachon 44 S.C.R.
395 (1911).
6. Employment to sell need not be in writing.— Written authority of the owner to sell his property is not required now in the State of New York. Chap ter 128 of the Laws of 1901 which provides that the broker's authority must be in writing was subse quently declared unconstitutional, and furthermore was repealed by Chapter 516, Laws of 1906, and again repealed by the Penal Law of 1909. In New Jersey and a few other states the written authority is re quired.
7. Earning question as to what efforts of the broker entitle him to a commission nat urally arises. The answer to this has been made clear by numerous judicial decisions. He must produce a purchaser ready, willing and able to buy the property upon the terms specified by the owner or terms ac ceptable to him, or he must be the procuring or effi cient cause of the sale being made. When the broker is employed to sell the property, he should, as we have already pointed out, obtain full particulars of the property including the price asked by the owner, and the terms on which he will sell. If the owner has stated no terms the broker's customer must offer terms which the owner will accept. In either event if the broker brings a customer who will buy on the owner's terms, the broker has fulfilled his agency and is en titled to compensation. Furthermore, if the broker brings a customer who altho not willing to purchase on the owner's terms, yet offers other terms which the owner accepts, the broker is entitled to the com mission.
The broker is not paid for interesting a prospective purchaser in the property, for making impressions, or for any efforts that are unsuccessful ( Sibbald vs. Bethlehem Iron Co., 83 N. Y., 383) . He is not en titled to a commission if he abandons negotiations after commencing them, or if the purchaser refuses to thru him. This is true in some jurisdictions even tho the sale is made afterward by the owner direct or thru the efforts of another broker. If the owner
or purchaser, in bad faith, get together behind the broker's back and make the deal, the broker would be considered the procuring or efficient cause and would be entitled to commission. It is not neces sary that the broker guarantee the solvency of his customer. If the customer were of notorious cial irresponsibility the owner could refuse to treat with him, but if he accepts him he cannot claim this as sufficient ground for refusing to pay the broker's commission. If no contract were made the broker suing for commission would have to prove that his customer was able financially to carry out the con tract, had one been made. In some cases the pur chaser would have to be one who was personally acceptable to the owner, as, for instance, where there are large terms of credit involved, or where a loan is to be made in connection with the sale to a builder improving the land.
It is not necessary that the contract of sale be re duced to writing and signed, altho the signing of a contract is the best evidence a broker has that his customer is ready and willing to purchase. The customer must be one, however, who could execute a binding contract at the time if required to do so. The owner cannot conscientiously refuse to deal with the proposed purchaser, and if he should do so, and the broker could prove that the purchaser was one ready, willing and able to buy on the owner's terms, the owner would be liable to the broker for his commis sion. The owner would also be liable for commission, if he could not carry out the transaction after a regu larly employed broker produced such a purchaser. A case of this kind was one where the seller's wife re fused to consent to the arrangements. 33 Misc. 793 (N. Y.) .
When the broker advertises a piece of property and a purchaser is attracted to the property and opens negotiations thru the broker, the broker is the pro curing cause and is entitled to commission if a sale is made directly between owner and purchaser.