The commission payable to the broker must be set up in the contract and where the defendant listed a certain property with a real estate broker for rent, promising to pay a commission to the broker, but also reserving the right to rent the premises himself and not pay any commission if the tenant was secured by himself, the

25. Lister v. Sakwinski, 206 Mich 121.

26. Flattery v. James Cuning-ham Son & Co., 125 Mich. 467: Friar v. Smith, 120 Mich. 411.

27. McCully v. Rivers, 203 Mich. 417.

28. McCully v. Rivers, 203 Mich. 417.

29. Hogle v. Meyering, 161 Mich. 472.

30. Kimball v. Ranney, 122 Mich. 160.

court laid clown the test to be: "Was the broker the procuring cause of the sale or lease?" and held that the right of authority is to the effect that if a broker, even though he did not have the exclusive agency, was in fact the procuring cause of the purchase or lease, and would otherwise be entitled to commissions, he will not be deprived thereof by the fact that the owner at the time of the sale or lease did not know of the broker's instrumentality in procuring the purchaser or lessee.31

It is a settled rule of law that a broker who has knowledge of restrictions in the seller's title, may not recover his commission where the sale fails of consummation because of such restriction, 32 but the rule does not apply where it is the intention of the parties that the seller should perfect the title by removing the encumbrance.33

A written contract required the broker to furnish a buyer for premises, "price $7,000.00, amount down $1,000.00, $100.00 every six months and interest," and where the broker furnished a buyer who had $900.00 in cash, and who owned property worth $6,000.00, and was willing to enter into an agreement on

31. McCready v. Nicholson, 213 Mich. 551; Kinsey v. Barth, 192 Mich. 219; McGovern v. Vennett, 146 Mich. 558; Heaton v. Edwards, 90 Mich. 500; Hoadley v. Savings Bank (Conn.), 44 L. R. A. 321, and note.

Gettleson v. Lewis, 206 Mich. 113, where the court said if the principal's title is defective and the agent has knowledge of such defect and it is not such a defect as may be removed by the principal, the agent does not earn his commission by producing as a purchaser one who is willing to and does contract for only a good or a merchantile title.

Cain v. Masurette, 196 Mich. 7, where the court held that the broker could not recover unless it was the intention of the parties that the principal should subsequently perfect his title in order to be able to perform.

Appleby v. Sperling, 194 Mich. 681, where the principal agreed to furnish an abstract and tax history showing clear title the agent advising the principal that mineral reservations would not injure his title, and later the buyer produced by the agent refused to complete the sale upon learning of the mineral reservations, and the court held that the agent could not recover his commission.

32. Chapin v. Bolles Iron & Wire Works, 213 Mich 515, where the defendant advised the broker that he could have the leases now on the premises removed, and the deal was not consummated by reason of the defendant's failure, the broker recovered his commission.

33. Brackenridge v. Claridge (Tex.), 43 L. R. A. 593, and note.

defendant's terms, the broker produced a buyer who was ready, willing and able to buy, and was entitled to his commission.34

An agreement to pay a commission whereby the broker was required to make a lease with one R. W., at terms and conditions satisfactory to the C. S. B. company, limits the right of recovery of the broker for his commissions upon his success in making the lease as per the agreement.35

Where a broker was engaged to secure a purchaser for the sale of defendant's business, consisting of a barber shop and a laundry agency, he did not procure a buyer, able, ready and willing to buy, if the buyer refused to assume defendant's agency contract with the laundry company, and the sale was not consummated, and the defendant was thereby relieved from paying any commission.36

Promissory notes given by a principal to his broker as commission in a certain deal whereby the broker was to procure a loan for the principal and manage the execution of a certain land contract, were held void for failure of consideration where the deal was not consummated.37

In a suit against the vendee for commission on the sale of a land contract, the plaintiff contended that the vendor had left money with the vendee to pay the commission, but it was held that the statement of the vendor made to the vendee that there was $25.00 due the plaintiff and he expected the vendee to pay it, was insufficient evidence to support plaintiff's claim.38

A real estate broker who has agreed in writing to furnish a buyer within a stipulated time, can not recover his commission before the time stipulated has expired, unless he has produced a buyer who was willing and able to pay the contract price in the time fixed by the writing.39

The vendor's equitable lien for the purchase price in a land contract, where the agreement was that the vendee should

34. Garrise v. Kars, 201 Mich. 643.

35. Fleming v. James S. Holden Co., 200 Mich. 519.

36. Hunter v. Blasser, 194 Mich. 157; Morgan v. Zanger, 188 Mich. 212.

i

37. Newman v. Adelsperger, 206 Mich. 683.

38. Edwards v. Thawan, 187 Mich. 361.

39. Crawford v. Cicotte, 186 Mich. 270; Biddle v. Biddle, 202 Mich. 160.

pay the entire commission of the broker as a part of the purchase price, attached in favor of the broker, on the signing of the contract.40

40. Biddle v. Biddle, supra.