Courter v. Lydecker

■The opinion of the court was delivered by Reed, J.

The condition upon which the plaintiffs were to become entitled to their commissions was that they should obtain a sale for the defendant.

In tire absence of a special agreement, the general rule is that the right of a broker to commissions is complete when he has procured a purchaser able and willing to conclude a bargain on the terms on which the broker was authorized to sell. 2 Am. & Eng. Encycl. L. (1 st ed.) 578; Mooney v. Elder, 56 N. 7. 238; Hinds v. Henry, 7 Vroom 328 .

The broker maj', by special agreement, so contract as to make his compensation dependent upon a condition. But it is not apparent how the contract in the present case differs from the usual employment of a broker to sell. The condition in all such employments is that the broker shall obtain a sale. The broker’s right to recover commissions in such cases is *513 dependent upon his obtaining a sale. His right to commissions, by the terms of the present contract, is, in express words, dependent upon his obtaining a sale. The standard by which the performance of this duty is to be ascertained must therefore be exactly the same under this contract as under a general employment.

In the present case the broker obtained a purchaser willing to conclude a bargain, upon the terms upon which the broker was authorized to sell, who was acceptable to, for he was accepted by, the vendor.

But it is insisted that there was no writing, and so the parol agreement between the vendor and purchaser was not a sale. The broker, under the terms of his employment, had no authority to enter into a written contract which would bind the vendor. Shepherd v. Hedden, 5 Dutcher 334; Morris v. Ruddy, 5 C. E. Gr. 236; Milne v. Kleb, 17 Stew. Eq. 378.

The vendor was content to rely upon a parol agreement, accompanied by the payment of a part of the consideration. It does not appear that he ever asked for a writing, and so it does not appear that the purchaser refused to execute one.

The broker had performed his duty in obtaining a willing and acceptable • purchaser upon the terms named, and he earned his commission.

It is to be observed that the purchaser, having gone into possession, the oral contract was in equity enforceable by the vendor. Wharton v. Stoutenburgh, 8 Stew. Eq. 266, 277.

It was upon this ground the ease was decided below. But whether this verbal contract was or was not enforceable by the vendor, he having accepted it as a sale, cannot deny to the broker his commissions for obtaining the sale.

Judgment affirmed.