Binswanger had the burden of proof on this issue. "[W]hether the broker was the procuring cause of the lease is ordinarily . . . a question of fact," Weinberg v. Desser, 243 Md. 347, 355, 221 A.2d 66, 70 (1966), and is accordingly reviewed for clear error. Stanley, 66 F.3d at 667.
Since it is equally clear that the Defendants were employed by the Plaintiff for the purposes of the transactions in question, under Maryland law the Defendants were entitled to a broker's commission for services rendered to the Plaintiff. See Maryland Code, Art. 2, § 17 (1956); Weinberg v. Desser, 243 Md. 347, 221 A.2d 66 (1966); Sanders v. Devereux, 231 Md. 224, 189 A.2d 604 (1963); Hogan v. Q.T. Corp., 230 Md. 69, 185 A.2d 491 (1962). Such entitlement to a commission is a profit under § 3604(e) as interpreted by Mintzes, supra.
Under Maryland law when no agreement has been reached, the court may imply a promise to pay the usual or customary commission, if such a custom can be established, or the reasonable value of the services if no such custom can be established. Weinberg v. Desser, 243 Md. 347, 357, 221 A.2d 66 (1966). The Keen Agreement could be used as evidence of what the fee should be. Alternatively, Binswanger and the Trustee could agree on a reasonable fee, subject to court approval.
Although both Blake and Groscup were decided prior to the enactment of the present statute in 1910, the requirement for proving the customary commission was in no wise changed by that act. In Weinberg v. Desser, 243 Md. 347, 221 A.2d 66 (1966), relied upon by Eastern, the jury had been instructed, as it was put by Judge Horney for the Court: "`You can, if you desire, adopt a measure of damages along the standards * * * [set forth in the schedule of commissions adopted by the local real estate board].
We have held, of course, and the jury was correctly instructed here, that the question whether a broker's efforts are the procuring cause of a lease or sale is not determined by whether his services are slight or extensive, but rather on the basis of whether the efforts he does make are in fact the proximate cause of interesting the tenant or purchaser, and producing the ultimate agreement to lease or purchase. Weinberg v. Desser, 243 Md. 347, 355, 221 A.2d 66 (1966); Cowal v. Marletta, 216 Md. 222, 228, 139 A.2d 712 (1958). Essentially the jury was faced with a choice of two opinions on what is a "customary" commission, five percent or six percent.
Under the statute, a real estate broker employed to sell property is entitled to his commission upon his employer's signing a contract of sale "whenever" the broker "procures in good faith a purchaser." As this Court has pointed out on several occasions, the statute, by its clear terms, applies only when the broker claiming the commission is the procuring cause of the sale. If some other broker finds the buyer, § 14-105 has no application. See, e.g., Weinberg v. Desser, 243 Md. 347, 355, 221 A.2d 66 (1966); Sanders v. Devereux, supra, 231 Md. at 231; Steele v. Seth, 211 Md. 323, 328-331, 127 A.2d 388 (1956); Buchholz v. Gorsuch, 144 Md. 62, 64-65, 124 A. 389 (1923). As the appellee Patterson Agency was not the procuring cause of the contract to sell the property to Lyon, the appellee can receive no benefit from the statute.
We see no reason why the same tests should not be applied in determining whether a broker is the procuring cause of a sale of personal property. That the jury chose to accept Mr. Hopkins' testimony and reject Mrs. Ricker's was the resolution of a disputed issue of fact, clearly within the jury's province, Weinberg v. Desser, 243 Md. 347, 221 A.2d 66 (1966). Judgment affirmed, costs to be paid by appellant.
"The Court has no difficulty in finding the absence of a special agreement since there was clearly no agreement or meeting of the minds as to when the commissions were payable. It is equally clear that Plaintiff procured a valid agreement enforceable against the seller, an option in terms acceptable to The Eastern Shore Development Corporation and signed by it. Whether Crosse was employed by Callis or by The Eastern Shore Development Corporation is primarily a question of fact and the burden of proving his employment is on the broker. Weinberg v. Desser, 243 Md. 347, 221 A.2d 66. After careful consideration of all the evidence, the Court feels that Mr. Crosse has failed to meet the burden that he was employed by Mr. Callis individually."
The law of Maryland has gone far in recognizing that if the broker produces any evidence tending to prove an agency, created by the express language of the parties, oral or written, or implied from their conduct, the question of its existence becomes a matter for determination by the jury. Weinberg v. Desser, 243 Md. 347, 221 A.2d 66 (1966); Sanders v. Devereux, 231 Md. 224, 189 A.2d 604 (1963); Hogan v. Q.T. Corporation, 230 Md. 69, 185 A.2d 491 (1962); Heslop v. Dieudonne, 209 Md. 201, 120 A.2d 669 (1956); Steele v. Seth, 211 Md. 323, 127 A.2d 388 (1956); Heise Burns v. Goldman, 125 Md. 554, 94 A. 159 (1915). The appellant relies heavily on Weinberg, supra; Hogan, supra and Heslop, supra.
. . . When the appellee requested permission to show the property of the appellants to prospective purchasers, both parties obviously realized the type of relationship which was being created between them. . . . [B]y allowing the appellee to show the property to various people they impliedly contracted to use the appellee as an agent for the purpose of that sale. . . . [U]nder this agency the appellants were obligated to pay the customary commission. . . . Likewise, the Court in Weinberg v. Desser, 243 Md. 347, 354-55, 221 A.2d 66 (1966), in response to an owner's assertion that the parties had "not" entered into a "contract of employment," stated: The argument is not valid.