The rule that a broker must have a contract in order to recover for his services, however beneficial they are to the principal, is necessary to protect the principal, who otherwise would frequently be unable to determine whether the price agreed upon with the purchaser included a commission. (See Restatement, Agency, §§ 441 Comment (c), 448 Comment (f); Lasoya Oil Co. v. Jarvis, 191 Okla. 213 [ 127 P.2d 142, 142 A.L.R. 270]; 12 C.J.S. p. 134.) Section 760 of the Probate Code has adopted this rule, adding the requirement that the contract be in writing.
Such is the weight of authority. Annotation to Lasoya Oil Co. v. Jarvis, 191 Okla. 213, 127 P.2d 142, 142 A.L.R. 270, at page 277. For all of the foregoing reasons we conclude the trial court did not err in refusing to direct a verdict for defendants.
C.F. Lawing, hereinafter called plaintiff, filed this action against Glover Glover Real Estate Company, a partnership composed of Dick Glover and Ben Glover, hereinafter called defendant, to recover $150, the same being half of the commission of $300 for the sale of certain real property. A trial to the court resulted in a judgment for the plaintiff and the defendant appealed from the judgment and the order overruling its motion for new trial and in two propositions asserts first that the plaintiff is not entitled to a share of the commission because he did not comply with the terms of the contract, and, second, that the defendant as principal has no duty to pay the plaintiff as agent a commission inasmuch as plaintiff gave the defendant reason to believe that he had not caused the customer to appear at the offices of defendant to complete the transaction. Defendant cites and relies on Bohnefeld v. Wahl, 97 Okla. 48, 215 P. 777; Coleman v. Moreland, 89 Okla. 128, 213 P. 843; Lasoya Oil Co. v. Jarvis, 191 Okla. 213, 127 P.2d 142, and several other cases. Some of these cases are inapplicable to the fact situation in the case at bar because they involve the question of agency of one purporting to act for the owner, see Bohnefeld v. Wahl, supra, or, the question of whether the owner who sells the property to the purchaser knows of the procurement of the purchaser by the broker where, perhaps, the owner sells to the purchaser for a price which does not include a commission for the broker. See Lasoya Oil Co. v. Jarvis, supra.
(1) Notice of prospect's identity unnecessary if broker was procuring cause of consummated sale. Lasoya Oil Co. v. Jarvis, 191 Okla. 213, 127 P.2d 142, 142 A.L.R. 270; 142 A.L.R. 275; Bryan v. Abert, 3 App. Cases (D.C.), 180; Stinde v. Blesch, 42 Mo. App. 578; Reynor v. Mackrill, 181 Iowa 210, 164 N.W. 335, 1 A.L.R. 523; 12 C.J.S. 212, sec. 91. (2) Missouri cases holding notice unnecessary. Tyler v. Parr, 52 Mo. 249; Goffe v. Gibson, 18 Mo. App. 1; Millan Abbott v. Porter, 31 Mo. App. 563; McCormack v. Henderson, 100 Mo. App. 647, 75 S.W. 171; Glade v. Eastern Ill. Min. Co., 129 Mo. App. 443, 107 S.W. 1002; Bell v. Kaiser, 50 Mo. 150; Hovey v. Aaron, 133 Mo. App. 573, 113 S.W. 718; Lane v. Cunningham, 171 Mo. App. 17, 153 S.W. 525; Stinde v. Blesch, 42 Mo. App. 578.
Where the conduct of the broker has been such as to warrant the principal in assuming that the purchaser has not been procured by the broker's efforts, the principal will not be liable for commission on a sale at a reduced price even though the broker was in fact responsible for interesting the purchaser in the property. Lasoya Oil Co. v. Jarvis, 142 A.L.R. 271. The faithful discharge of his duties is a condition precedent to any recovery upon the part of a broker for the services he has rendered his principal.
But there have appeared in the cases, even in those jurisdictions following the general rule, a variety of circumstances that prevent the application of the general rule. The cases on the subject are collected in an elaborate annotation in 142 A.L.R., 270, to the case of Lasoya Oil Co. v. Jarvis, 191 Okla. 213, 127 P.2d 142. The first two paragraphs of the syllabus of that case, as reported in A.L.R., are: