Conceding that no sufficient tender was made, still a tender was excused because of the action of defendants. (Civ. Code, sec. 1511; Smith v. Smith, 25 Wend. 405; Howard v. Holbrook, 9 Bosw. 237: Tasker v. Bartlett, 5 Cush. 359; Moynahan v. Moore, 77 Am. Dec. 472, and note; Southworth v. Smith, 7 Cush. 391; Knapp v. Wallace , 41 N.Y. 477; McClave v. Paine , 49 N.Y. 561; 10 Am. Rep. 431; Waterman on Specific Performance, secs. 439, 446; Hall v. Whittier, 10 R.I. 530; Pomeroy on Contracts, secs. 326, 360-63.) The only thing the broker had to tender or produce was a buyer, ready, willing and able to buy; all of which the plaintiffs did in this case.
To earn his commission the broker must be an efficient agent in, or the procuring cause of, the contract." (McClave v. Paine , 49 N.Y. 563.) To entitle a real estate broker to recover commissions upon a sale, it must appear that his efforts were the procuringcause of the sale.
Put differently, “[a] broker is entitled to a commission upon the sale of the property by the owner only where the broker has been given the exclusive right to sell; an exclusive agency merely precludes the owner from retaining another broker in the making of the sale” (Far Realty, 34 A.D.3d at 262, 823 N.Y.S.2d 403 ). We have endorsed this dichotomy implicitly in the past (see Ackman v. Toren, Inc., 6 N.Y.2d 720, 185 N.Y.S.2d 808, 158 N.E.2d 503 [1959], affg. 6 A.D.2d 427, 179 N.Y.S.2d 128 [1st Dept.1958] ; McClave v. Paine, 49 N.Y. 561, 561 [1872] ; Moses v. Bierling, 31 N.Y. 462, 462 [1865] ), and
Put differently, “[a] broker is entitled to a commission upon the sale of the property by the owner only where the broker has been given the exclusive right to sell; an exclusive agency merely precludes the owner from retaining another broker in the making of the sale” (Far Realty, 34 A.D.3d at 262, 823 N.Y.S.2d 403). We have endorsed this dichotomy implicitly in the past ( see Ackman v. Toren, Inc., 6 N.Y.2d 720, 185 N.Y.S.2d 808, 158 N.E.2d 503 [1959], affg.6 A.D.2d 427, 179 N.Y.S.2d 128 [1st Dept.1958]; McClave v. Paine, 49 N.Y. 561, 561 [1872]; Moses v. Bierling, 31 N.Y. 462, 462 [1865] ), and
"A broker who is employed to sell property on commission earns his compensation when he has been the efficient agent in procuring a satisfactory purchaser who is able, ready, and willing to buy the property on the terms fixed by the owner; and if the sale is not consummated by reason of the owner's fault, this fact is no bar to the recovery of commissions. Chambers v. Seay, 73 Ala. 372; Henderson v. Vincent, 84 Ala. 99, 4 So. 180; Vinton v. Baldwin [ 88 Ind. 104], 45 Am. Rep. 447; McClave v. Paine [ 49 N.Y. 561], 10 Am. Rep. 431. * * * The theory of the law is that, when the broker has brought the minds of the buyer and seller to an agreement upon all the terms of sale, and the buyer is able, ready, and willing to buy, this is a constructive consummation of the sale, so far as the broker is concerned, because he has done all that he was required to do. If he has negotiated to sell the property to a minor, or a lunatic, or a feme covert, or other person who is legally incapacitated to bind himself to perform the terms required, the owner may refuse to accept the proffered purchaser, and incurs no obligation to pay commissions for the service of procuring such a buyer."
Brokers who undertake to find purchasers earn their commission when they bring to their principal a person willing and ready to buy. Love v. Miller, 53 Ind. 294; Vinton v. Baldwin, 88 Ind. 104, and cases cited: Fischer v. Bell, 91 Ind. 243; McClare v. Paine, 49 N.Y. 561. " 'The question is not whether it was illegal to sell or offer to sell patented rights, but whether it was illegal for the broker to attempt to find a purchaser; for, as the pleadings present the facts, the broker was not authorized to make a sale, nor was he requested to sell.
The court erred in instructing the jury to the effect that acts of the plaintiff not making him the efficient agent or procuring cause of inducing customers to contract with defendant could entitle him to commissions. (Zeimer v. Antisell , 75 Cal. 511; Sibbald v. Bethlehem Iron Co ., 83 N.Y. 382; 38 Am. Rep. 441; Wharton on Agency, sec. 326; McClave v. Paine , 49 N.Y. 561; 10 Am. Rep. 431; Shanklin v. Hall , 100 Cal. 29.) T.
Had the negotiations been continued by Bancroft after the plaintiff had notified him of the defendant's desire to reopen them directly with the defendant and the sale consummated between them, instead of through the instrumentality of another person, the plaintiff would, nevertheless, have been entitled to his commission. Murray v. Currie, 7 Carr. Payne, 584; Chilton v. Butler, 1 E.D. Smith, 150; Morgan v. Mason, 4 E.D. Smith, 636; Stillman v. Mitchell, 2 Rob. 523; McClave v. Paine, 49 N.Y. 561; Jones v. Adler, 34 Md. 440; Hanna v. Collins, 67 Ia. 51; Edwards on Factors and Brokers, §§ 111, 112. The fact that the defendant concluded the negotiations with the purchaser through another person to whom she has paid a commission, instead of making the sale herself, does not take away the plaintiff's right to his commission.
COUNSEL: The plaintiff, in order to have been entitled to his commissions, should have brought the intending purchaser and the owner of the land together. (Glentworth v. Luther, 21 Barb. 145, cited in Middleton v. Findla , 25 Cal. 76, 82; Keys v. Johnson , 68 Pa. St. 42; Dolan v. Scanlan , 57 Cal. 261, 266; Jewett v. Emson, 2 Rob. [N. Y.] 165, 167; Gillett v. Corum, 7 Kan. 156, 160; Sibbald v. Bethlehem Iron Co ., 83 N.Y. 382; 38 Am. Rep. 441; Zeimer v. Antisell , 75 Cal. 509, 512; McClave v. Paine , 49 N.Y. 561, 563; 10 Am. Rep. 431; Story on Agency, sec. 28; Potts v. Turner, 6 Bing. 702, 706; Wylie v. Marine Nat. Bank , 61 N.Y. 416; Moses v. Bierling , 31 N.Y. 462; McGavock v. Woodlief, 20 How. 221; Barnes v. Roberts, 5 Bosw. 73; Holly v. Gosling, 3 Smith, E. D. 262; Jacobs v. Kolff, 2 Hilt. 133; Kock v. Emmerling, 22 How. 72; Corning v. Calvert, 2 Hilt. 56; Trundy v. Hartford etc. Steamboat Co ., 6 Rob. [N. Y.] 312; Van Lien v. Byrnes, 1 Hilt. 134; Parker v. Walker, 86 Tenn. 566; Waterman v. Boltinghouse , 82 Cal. 659.) Or else he should have obtained a written contract from the intending purchaser for the purchase of the property. (Civ. Code, secs. 1624, 1741; Code Civ. Proc., secs. 1971, 1973; Bishop on Contracts, sec. 1135; Story on Agency, sec. 24; Wharton on Agency, sec. 695; Parker v. Waker, 86 Tenn. 566; Love v. Miller , 53 Ind. 294; 21 Am. Rep. 192; Goss v. Broom , 31
The conclusion upon this evidence was permitted that the plaintiff was not only not employed by the defendant, but that his agency was not in any sense a procuring cause of the negotiation for the lease or in obtaining it by the defendant, and if so found by the jury the consequence may have been that the promise to pay was without consideration and ineffectual to charge the defendant. ( McClave v. Paine, 49 N.Y. 561; Sussdorf v. Schmidt, 55 id. 319; Sibbard v. Bethlehem Iron Co., 83 id. 378.) If, however, the proposition in question may be treated as qualified or broadened in its import by other portions of the charge, reference may be made to them in its support.