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Buruss v. Hines, 94 Va. 413 (26 S. E. Rep. 875). Mill & V. Tenn. Code, § 3650, subd. 5, construed and applied-pleading the statute of limitations. Ferring v. Fleischman, Tenn. (39 S. W. Rep. 19). W. Va. Code, 1891, ch. 139, construed and applied-enforcement of liens-effect of payments-parties. Shumate's Ex'rs v. Crockett, 43 W. Va. 491 (27 S. E. Rep. 240).

REAL ESTATE AGENT.

EPITOME OF CASES.

Sec. 751. Authority of real estate agent-Revocation. The employment of a broker to procure a purchaser for lands, does not confer authority to bind the owner to sell by a contract in writing. Scull v. Brinton, 55 N. J. Eq. 489 (37 Atl. Rep. 740). A letter from a property owner to a real estate broker stating the minimum price he will take for his property and that the agent may have all above that sum, is merely an authority to find a purchaser and does not authorize the broker to bind the owner by a contract of sale. Campbell v. Galloway, 148 Ind. 440 (47 N. E. Rep. 818). The authority of an agent to sell land, does not, per se, confer authority to cancel a trade without the principal's knowledge so as to relieve the purchaser. West End Hotel & Land Co. v. Crawford, 120 N. C. 347 (27 S. E. Rep. 31). Authority given one as agent to negotiate for a sale or exchange of lands, does not confer an implied authority to enter into a contract of exchange. Holmes v. Redhead, 104 Ia. 399 (73 N. W. Rep. 878). Citing, Furst v. Tweed, 93 Ia. 300 (61 N. W. Rep. 857); O'Reilly v. Keim, 54 N. J. Eq. 418 (34 Atl. Rep. 1073); Duffy v. Hobson, 40 Cal. 240 (6 Am. Rep. 617); Everman v. Herndon, 71 Miss. 823 (15 So. Rep. 135); Halsey v. Monteiro, 92 Va. 581 (42 S. E. Rep. 258). A real estate broker who is merely offered a commission to find a purchaser, has no authority to bind the owner by representations or contract, or by the granting of possession or the making of repairs; and a letter from him accepting the owner's offer to

sell which recites that his purchaser understands that the property is of certain dimensions, does not vary the terms of the offer. Planer v. Equitable Life Assur. Soc., N. J. Eq. (37 Atl. Rep. 668).

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An agent and general manager of a corporation with full power and authority as declared in the order of his appointment to manage and control the business of the corporation," may execute a mortgage upon its property in the name of the corporation to secure the payment of indebtedness contracted in the management of the business. Thayer v. Nehalem Mill Co., 81 Or. 437 (51 Pac. Rep. 202). Particular case in which one co-owner of a mining claim was held authorized as the agent of another co-owner to bind him by a contract compromising a controversy with third persons as to the ownership of the claim. Hagerman v. Bates, 24 Colo. 71 (49 Pac. Rep. 189). Particular evidence held sufficient to show that an owner authorized a sale of land by her general agent. Rovelsky v. Scheuer, 114 Ala. 419 (21 So. Rep. 785). The selection of a trustee to take title to property purchased for a syndicate, and to give a deed of trust thereon for a part of the purchase price, is not within the implied authority of real estate agents who are members of, and who formed, the syndicate. A purchase of lands by real estate agents on behalf of a syndicate of which they are members, when the agents are also secretly acting as agents of the vendor, cannot be enforced against the other members of the syndicate. A usage or custom of real estate agents in a certain city to get up syndicates to buy property in their hands for sale will not bind members of a syndicate who have no knowledge thereof, especially if they lived at other places, so as to sustain a purchase of property for the syndicate made by such agents, who are also acting as secret agents of the vendor. Ferguson v. Gooch, 94 Va. 1 (26 S. E. Rep. 397; 40 L. R. A. 234).

A contract, by which a landowner employs a broker as his exclusive agent for the sale of his property for a specified time which does not bind the agent to do anything, but gives him a right to a commission on any sale of the property during such time, lacks mutuality and is revocable at any time before the agent procures a purchaser; and the agent cannot recover

a commission for a sale made by the owner. Land Co., 74 Miss. 567 (21 So. Rep. 233).

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Sec. 752. Liability of loan agent for negligence. Where one carrying on the business of a loan agent was engaged by another to loan his money on first mortgage security, loaned it, and took a mortgage on real estate without procuring an abstract of title or having the title examined, and without even inquiring whether or not there was any prior incumbrance on the property, was held guilty of negligence in making the loan. Hardwick v. Ickler, Minn. (73 N. W. Rep. 519).

Sec. 753. As to when a commission is earned, due and payable. A broker employed to secure a loan, is entitled to his commission when he has procured a lender who is ready, willing and able to lend the money upon the terms proposed. Secor v. Patterson, 114 Mich. 37 (72 N. W. Rep. 9). In order for a real estate agent to recover a commission, he must show either a completed sale or one negotiated in compliance with the authority conferred upon him by the owner. Hurd v. Neilson, 100 Ia. 555 (69 N. W. Rep. 867). He is not entitled to a commission until he has furnished a purchaser for the property willing and able to buy it upon such terms and at the price prescribed by the vendor. Stewart v. Smith, 50 Neb. 631 (70 N. W. Rep. 235); Crook v. Forst, 116 Ala. 395 (22 So. Rep. 540). Procuring an offer for a larger sum, but which does not comply with the principal's terms as to payments, does not entitle the agent to a commission. Smith v. Allen, 101 Ia. 60S (70 N. W. Rep. 694). Where an agent fails to consummate a transaction entitling him to a commission on account of the fault of his employer, he is entitled to recover his commission. Washburn v. Bradley, 169 Mass. 86 (47 N. E. Rep. 512); Fenn v. Ware, 100 Ga. 563 (28 S. E. Rep. 238). A real estate broker who simply advised the owner of property who desired to sell the same that he had a "customer" for the property and subsequently introduced the parties to each other and they consummated a sale, is not entitled to recover a commission from the seller, there being no other facts upon which to base an implied

Weinhouse v. Cronin,

contract by him to pay a commission. 68 Conn. 250 (36 Atl. Rep. 45). Where a broker who has no interest in the lands agrees to pay other brokers a specified sum if they will sell the same at a specified price, he is not liable for commission on a sale made at a less price. Whitcomb v. Dickinson, 169 Mass. 16 (47 N. E. Rep. 426). Where one owning lands with two others, represents to a broker that he has authority to act in regard to the sale of the lands and engages him to find a purchaser upon certain terms, he is liable to such broker for his commission, where he procures a purchaser for the propery on the terms mentioned. Oliver v. Morawetz, 97 Wis. 332 (72 N. W. Rep. 877). Where one firm of real estate brokers agrees to pay another firm a certain commission on sales of land in a certain county, to customers "procured" by the latter, a commission may be recovered for a sale consummated through the efforts of a third person employed by the latter firm, without the knowledge of their employers. Boyd v. Watson, 101 Ia. 214 (70 N. W. Rep. 120). Where a broker's contract provides that he is to have a regular commission for selling property "out of the first money received" from the sale, he cannot recover his commission until there has been a payment made by the vendee, although he may have caused the parties to agree to the terms of a contract of sale which was subsequently abandoned by them. Lindley v. Fay, 119 Cal. 239 (51 Pac. Rep. 333). A joint contract by several persons owning lands as tenants in common agreeing to pay a broker a certain sum per acre if he will sell the land or portions thereof, was held not to entitle him to a commission upon the transfer of an undivided interest among themselves or to third persons. Johnson v. Sirret, 153 N. Y. 51 (46 N. E. Rep. 1035). Particular case in which an agent was held not entitled to recover a commission. Cobb.v. Kenner, Tenn. (42 S. W. Rep. 277). For construction of particular contract to pay a commission for procuring a lease, see Ryer v. Oesting, 119 Cal. 564 (51 Pac. Rep. 857).

Sec. 754. Right to commission on sale consummated by the owner or a third party. Where a broker attempts to make a sale to a purchaser who is introduced to him by the owner but fails, he is not entitled to recover a

commission on account of a sale subsequently made by the owner to such purchaser at a reduced price, after the owner has withdrawn his property from the broker's hands. Mallonee v. Young, 119 N. C. 549 (26 S. E. Rep. 141). In the case of Crook v. Forst, 116 Ala. 395 (22 So. Rep. 540), the supreme court of Alabama say: "The owner of real property, by employing a real estate agent or broker to effect a sale of the property, does not thereby preclude himself from employing other agents for the same purpose, or from effecting a sale himself, provided that in making the sale himself he acts in good faith. The owner of the property would not be permitted to avail himself of the services of an agent, who procured a purchaser, to effect a sale himself to such purchaser, and thereby deprive the agent of his commission; nor could he effect such sale at a small reduction from the price at which the agent was authorized to find a purchaser, nor make immaterial changes in the terms of the sale, if the purpose of the reduction was merely to save the commission agreed to be paid to the agent. The owner, however, has a right to fix a net value upon his property, and the terms of the sale; and if the agent cannot effect a sale, so that the owner may realize such net value, or upon the terms fixed, the owner has the power to dispose of the property at such price and at such terms. Fair dealing between the parties would demand of the owner that he disclose his intention to the agent, before concluding the sale to a purchaser procured by the agent." An agreement by a landowner to pay a broker a commission if he would effect a sale of his property, does not entitle the broker to a commission for merely calling a purchaser's attention to the fact that the property is for sale, where all the negotiations leading up to the consummation of the sale were carried on independently by another agent. Greene v. Owings, Ky. (41 S. W. Rep. 264). Particular fact case in which a broker was held not entitled to a commission on a sale consummated by another broker. Crowninshield v. Foster, 169 Mass. 237 (47 N. E. Rep. 879).

Sec. 755. Actions to recover commissions-Defenses -Evidence. Where the contract does not fix the amount of commission, a recovery may be had on quantum meruit.

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