REAL ESTATE BROKER. One who en gages in the purchase and sale of real estate as a business, and holds himself out to the public in that character and capacity. Chad wick v. Collins, 26 Pa. 138.
Where a broker contracts to produce a pur chaser who shall actually buy, he has per formed his contract by the production of one financially able, with whom the owner actu ally makes an enforceable contract of sale; Lunney v. Healey, 56 Neb. 313, 76 N. W. 558, 44 L. R. A. 593; Condict v. Cowdrey, 139 N. Y. 273, 34 N. E. 781; Middleton v. Thomp son, 163 Pa. 112, 29 Atl. 796; Halsey v. Mon teiro, 92 Va. 581, 24 S. E. 258; Donohue v. Padden, 93 Wis. 20, 66 N. W. 804; Carpenter v. Rynders, 52 Mo. 278; Phelps v. Prusch, 83 Cal. 628, 23 Pac. 1111; Hungerford v. Hicks, 39 Conn. 259; Wilson v. Mason, 158 III. 304, 42 N. E. 134, 49 Am. St. Rep. 162; Cassady v. Seeley, 69 Ia. 509, 29 N. W. 432.
In order to entitle a broker to commis sions, there must be an actual sale, vesting a right to the purchase money in the vendor and transferring the right of property to the purchaser ; Ormsby v. Graham, 123 la. 202, 98 N. W. 724, where a consummated sale is defined to be one consummated by such a contract as will be enforced by the courts, if enforcement be demanded.
If the purchaser is unable to complete the sale and is obliged to pay a forfeit for his default, the broker can recover no share of such forfeit money, as his commission ; Kim berly v. Henderson, 20 Md. 515; and so where a part of the purchase price has been paid and the purchaser is unable to pay the residue; Riggs v. Turnbull, 105 Md. 135, 66 Atl. 13, 8 L. R. A. (N. S.) 824, 11 Ann. Cas. 783.
Although the broker has spent time and money in finding a buyer, yet if he fails or abandons his effort or his authority is duly terminated, he earns no commission although he may have actually helped to bring about a sale subsequently made and to parties in troduced by him, unless the broker's sale fails by the fault of the principal or he ca priciously changes his mind, or the title is defective; Sibbald v. Iron Co., 83 N. Y. 378, 38 Am. Rep. 441; Muldoon v. Muldoon, 133 Mass. 110; Rockwell v. Newton, 44 Conn: 337; or because of certain erroneous repre sentations of the owner; Dotson v. Milliken, 209 II. S. 237, 28 Sup. Ct. 489, 52 L. Ed. 768.
A broker did not lose his commissions for procuring a mortgage loan where it failed because the lender demanded an indemnity bond against liens, the time for filing which had elapsed, and refused to accept a cash deposit with written evidence that no liens existed; Silberberg v. Chipman, 42 Colo. 20, 93 Pac. 1130, 15 L. R. A. (N. S.) 187.
A statute providing that contracts with brokers for the sale of land must be in writ ing and subscribed by the parties is constitu tional, and means no more than an exten sion of the statute of frauds; Covey v. Hen ry, 71 Neb. 118, 98 N. W. 434; under a like statute it was held that, where there was no writing, a broker who had rendered services could not recover commissions; Leimbach v. Regner, 70 N. J. L. 608, 57 Atl. 138; to the same effect, Jamison v. Hyde, 141 Cal. 109,
74 Pac. 695; Marshall v. Trerise, 33 Mont. 28, 81 Pac. 400.
Authority to close a binding contract must be sufficiently conferred; Weatherhead v. Ettinger, 78 Ohio St. 104, 84 N. E. 598, 17 L. R. A. (N. S.) 210. Instructions to sell if he can, and for certain price, is not authori ty to make a binding contract; Morris v. Ruddy, 20 N. J. Eq. 236; nor is a letter stat ing what he would sell for ; Gilbert v. Bax ter, 71 la. 327, 32 N. W. 364; Simmons v. Kramer, 88 Va. 411, 13 S. E. 902; nor leav ing a list of property with a broker; Halsell v. Renfrow, 14 Okl. 674, 78 Pac. 118, 2 Ann. Cas. 286. But it is held in England that instructions to a broker to sell property, with an agreement to pay a commission, au thorized the broker to make a binding con tract and sign it ; [1900] 2 Ch. 267.
Where the contract with the agent stipu lates a definite time within which the agent may sell, it gives the agent the exclusive right to sell within the time and the princi pal cannot revoke the agency; Levy v. Rothe, 17 Misc. Rep. 402, 39 N. Y. Supp. 1057; Green v. Cole, 127 Mo. 587, 30 S. W. 135. The broker takes the chance of the owner making a sale himself ; Gilbert v. Coons, 37 Ill. App. 448; Dole v. Sherwood, 41 Minn. 535, 43 N. W. 569, 5 L. R. A. 720, 16 Am. St. Rep. 731,; and in the absence of bad faith the owner may, after the broker's time limit has expired, sell to a customer introduced by the broker within the time limit; Page v. Griffin, 71 Mo. App. 524; Neal v. Lehman, 11 Tex. Civ. App. 461, 34 S. W. 153 ; for a higher price; Decker v. Klingman, 149 Mich. 96, 112 N. W. 727; or a lower price; Loxley v. Studebaker, 75 N. J. L. 599, 68 Atl. 98; Brown v. Mason, 155 Cal. 155, 99 Pac. 867, 12 L. R. A. (N. S.) 328.
If, after the broker has been allowed a reasonable time within which to produce a buyer and effect a sale, he has failed to do so and the seller fairly and in good faith has terminated the agency and sought other assistance by the aid of which a sale is con summated, it does not give the original bro ker a right to commissions because the pur chaser is one whom he introduced and the final sale is in some degree aided or helped forward by his previous unsuccessful efforts ; Sibbald v. Iron Co., 83 N. Y. 378, 38 Am. Rep. 441, which was followed in Crowe v. Trickey, 204 U. S. 228, 27 Sup. Ct. 275, 51 L. Ed. 454 (in the New York case the agent's authority was revoked in bad faith before the completion of the sale); Donovan v. Weed, 182 N. Y. 43, 74 N. E. 563; Kelly v. Marshall, 172 Pa. 396, 33 Atl. 690 ; Fultz v. Wimer, 34 Kan. 576, 9 Pac. 316 ; Zeimer v. Antisel], 75 Cal. 509, 17 Pac. 642; Ropes v. Rosenfeld's Sons, 145 Cal. 679, 79 Pac. 354; [1907] 2 Ir. Rep. 212.
Where two brokers endeavor to sell the property to the same person, who afterwards buys it, that agent earns the commission who was the efficient and procuring of the sale ; Votaw v. McKeever, 76 Kan. 870, 92 Pac. 1120; Jennings v. Trummer, 52 Or. 149, 96 Pac. 874, 23 L. R. A. (N. S.) 164, 132 Am. St. Rep. 680.