Parker v. Estabrook , 68 N.H. 349 ( 1895 )

"The general rule of law as to commissions undoubtedly is, that the whole service or duty must be performed, before the right to any commissions attaches, either ordinary or extraordinary; for an agent must complete the thing required of him, before he is entitled to charge for it." Sto. Ag., s. 329. The question in this case, therefore, is whether the agreement entered into between Marston and the defendant constituted a sale within the meaning of the contract between the plaintiff and the defendant; in other words, had the plaintiff performed the contract? The general rule upon the authorities is that to entitle a real estate broker to recover his commissions he must show that he produced one who was both able and willing to purchase the property upon the terms proposed. Chapin v. Bridges,116 Mass. 105; Desmond v. Stebbins, 140 Mass. 339; Hayden v. Grillo,26 Mo. App. 289, 293; Coleman v. Meade, 13 Bush (Ky.) 358, 363; Kock v. Emmerling, 22 How. 69; Phelan v. Gardner,43 Cal, 306, 311; Nesbitt v. Helser, 49 Mo. 383, 385; Gillett v. Corum,7 Kan. 156; Hamlin v. Schulte, 31 Minn. 486.

In all the cases, under varying forms of expression, the fundamental doctrine is that the duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale and the price and terms upon which it is to be made, and that until that is done his right to commissions does not accrue. Sibbald v. Iron Co., 83 N.Y. 378."A broker is not entitled to commissions when the customer, through no fault of the seller, refuses to complete the contract; but it is different when the customer has entered into a contract, binding upon both parties, or into an agreement to pay a stipulated sum as damages in case of refusal to complete the contract." Leete v. Norton, 43 Conn. 219; Coleman v. Meade, 13 Bush (Ky.) 358; Veazie v. Parker, 72 Me. 443; Pearson v. Mason, 120 Mass. 53; Rice v. Mayo, 107 Mass. 550; Ward v. Cobb, 148 Mass. 518. There is no suggestion in the present case that the purchaser, Marston, was not pecuniarily responsible and able to answer according to his contract. When the vendor accepts the purchaser and enters into a contract with him, the solvency of the purchaser is to be presumed in the absence of proof. Grosse v. Cooley, 43 Minn. 188; Hart v. Hoffman, 44 How. Pr. 168; Cook v. Kroemeke, 4 Daly 268; Coleman v. Meade, supra.

Nor does it appear upon what terms the sale of the farm was entrusted to the broker. It must be assumed that the terms set forth in the written agreement with Marston were in accord with the previous instructions to the broker, or were satisfactory to the defendant; if not, in the first case the defendant would have been under no obligation to make the agreement, and in the second case would not have done so. The written agreement, though insufficient to pass the legal title, was a sale in effect and by its terms. The equitable title passed to the purchaser, and he could have compelled specific performance of the contract. Similarly, the defendant could have compelled the performance of the contract by Marston. The fact that the agreement contained a stipulation as to damages in case of a breach by either, did not deprive either of his right to a performance as agreed. Ewins v. Gordon, 49 N.H. 444. But even if the contract only bound Marston to take the farm or pay $200 for breach of his agreement, it was a contract of sale acceptable to the defendant; and having agreed upon the sum at which the purchaser should be permitted to withdraw therefrom, the defendant must be presumed to have included in the sum named all items of possible damage to him, including the agent's commission which he had agreed to pay, and he is estopped to deny that this payment was not equivalent to performance. Leete v. Norton, supra. The case stands no differently than it would had the defendant conveyed to Marston by deed, taking a mortgage back for the whole purchase money, and subsequently released the mortgage and taken the farm back upon payment of $200. The plaintiff, having performed his contract, is entitled to the agreed commission.

Judgment on the report.

All concurred.