Fraser v. . Wyckoff

*448 Allen, J. A broker for the sale of real estate is entitled to his commissions when, in the language of the cases, he “ is the procuring cause of the sale; ” that is, when he has found a purchaser and brought him to his employer and a contract is made between them for the sale of the property, or the purchaser is ready to purchase and the seller refuses or is unable to consummate the sale. (Knapp v. Wallace, 41 N. Y., 477; Martin v. Silliman, 53 id., 615; Lloyd v. Mat thews, 51 id., 124.) He is not, however, entitled to commissions until he has performed the undertaking assumed by him. Whatever may be the terms and conditions upon which his right to compensation depends, they must be performed, as a condition precedent to a right of action for a commission. A broker to negotiate the sale of an estate is not entitled to his commission until he finds a purchaser ready and willing to complete a purchase on the terms prescribed by the seller and assented to by the broker., (Moses v. Bierling, 31 N. Y., 462; McGavock v. Woodlief, 20 How. [U. S.], 221.) If the principal prevents a performance by the broker, the right of the latter to recover would depend upon a different principle, and he might recover without proving a strict performance. (Young v. Hunter, 2 Seld., 203.) The right to recover in this action rests upon an allegation of performance, and not upon a waiver or prevention of performance by the defendant. The proof comes entirely short of establishing either a performance or an excuse for not performing. The agreement with the broker was very explicit as to the character and terms of the sale to be accomplished as a condition to the earning of commissions. The sale was to be absolute, for a specified sum, to be paid to the defendant. The compensation was to be earned when a customer should be obtained who would pay the price named. There is no pretence that such a purchaser has been found, or that such a sale has been made. The defendant has made a very different arrangement for utilizing his patents and making them remunerative, viz., by entering into a business copartnership with two others for carrying on an extensive business, *449 including the selling of rights secured by the patents and the use of the patented machinery in their business operations. The defendant is, by the arrangement, to depend for a return for his patents upon the results and net earnings of the partnership— a contingency not contemplated in the agreement with the broker. Whether the broker was instrumental in effecting this arrangement is not material; if he was, it was but incidentally, and it was not the service for which the defendant employed him. As the plaintiff utterly failed to make a case for a recovery, the exclusion of evidence in explanation of the agreement not to sell or offer to sell for less than a specified sum, was immaterial. Whether that agreement was in or out of the case did not affect the result. The judgment must be affirmed. All concur. Judgment affirmed.