Keys v. Johnson

The opinion of the court was delivered,

by Sharswood, J.

Brokers are persons whose business it is to bring buyer and seller together. They need have nothing to do with the negotiation of the bargain: Inslee v. Jones, Brightly’s N. P. Rep. 76. A broker becomes entitled to his commissions whenever he procures for his principal a party with whom he is satisfied, and who actually contracts for the purchase of the property at a price acceptable to the owner: Glentworth v. Luther, 21 Barb. 145. He must establish his employment as broker, cither by previous authority, or by the acceptance of his agency and the adoption of his acts, and also must prove that his agency was the procuring cause of the sale: and when, being duly authorized to sell property at private sale, he has commenced a negotiation with a purchaser, the owner cannot, while such negotiation is pending, take it into his own hands and complete it either at or ' below the price first limited, and then refuse to pay the commissions: Chilton v. Butler, 1 E. D. Smith 150. “If vendors were permitted,” said Woodruff, J., “to employ brokers to look up purchasers, and call the attention of buyers to the property which they desired to sell, limiting them as to the terms of sale, and then while such purchasers were negotiating, take the matter into their own hands, avail themselves of the labor, services and expenses of the broker in bringing the property into market, and accomplish a sale by an abatement in the price, and yet refuse to pay the broker anything, the business of a broker would not be worth pursuing, gross injustice would be done, every unfair and illiberal vendor would limit his property at a price slightly above the market, and make use of the broker to bring it into notice, and then make his own terms with the buyers who were in reality procured by the efforts of the agent.”

There was no evidence in this cause from which the jury would have been justified in drawing the conclusion that the employment of the plaintiff below as the broker of the defendant was to sell exclusively for cash. A price was limited, and it seems that Keys had told Johnson that he would not exchange for city property, as he wanted money. Had he continued of the same mind, no bargain, in all probability, would have been made and no commission earned. But without revoking the broker’s authority —or withdrawing the property from his hands — he determined to make an exchange. His letter to Johnson, November 12th 1867, contained these words: “ I will sell on terms to suit the purchaser.” It was no more legitimately to be inferred that Johnson was not to receive any commission if these terms were varied so as to accept a mortgage or other property in payment, than that such a result would follow if Keys came down a few hundred dollars in the price. If this was what was meant by the defendant’s points there was no evidence of any such a contract. The learned judge very properly declined to instruct the jury that if a broker is employed to effect a sale for cash and he finds a purchaser who is willing to give land, which is accepted by the vendor, the broker has no right to compensation. On the contrary, if the broker procures a person with whom a bargain is made upon any terms, he is entitled to his commission unless there is something special in the contract of employment, or the circumstances of the case, to preclude him.

Judgment affirmed.