The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 63
The following text was automatically extracted from the image on this page using optical character recognition software:
GASTON, WILLIAMS & WIGMrORE OF CANADA V. WARNER I63
duced depends upon the lex loci contractus, using the phrase as de-
noting the place where the contract was entered into It may be con-
ceded that, where a contract is by its term to be performed in a place
other than that in which it is made, the parties, according to the trend
of American authorities, are presumed to adopt the law of the place
of performance as the law of the contract. Hall v. Cordell, 142 U. S.
116, 12 Sup. Ct. 154, 35 L. Ed. 956. The general rule as to contracts,
however, is that they are to be governed as to their validity, as well
as to their nature and interpretation, by the law of the place where
they are made, unless the contracting parties clearly appear to have
had some other law in view; and under the express terms of the exe-
cuted contract of sale between the vendor and the vendees the ship
was to be delivered at New York. It certainly cannot be said that it
was made known to the broker at the time of his employment that any
other law than the law of the place of contract was in any way appli-
cable to the transaction in which the parties were engaged. By the lex
loci contractus the vendees were not subject to any legal disability, and
were able, ready, and willing to consummate the transaction.
 It is elementary that a broker employed to find a purchaser is
not entitled to a commission, where no sale is made, unless he has at
least produced one who is able, ready, and willing to take the property
on the terms specified. Ferguson v Willard, 196 Fed 370, 116 C. C.
A. 406; Wittwer v. Hurwitz, 216 N. Y. 259. 110 N. E. 433; Wheel-
er v. Lawler, 222 Mass. 210, 110 N. E. 273; Abbott v. Lee, 86 Conn.
392, 85 Atl. 526. Each of the words "able, ready, and wdhnllg" ex-
presses an idea that the others do not convey Phillips' Ex'r v. Rudy,
146 Ky. 780, 784, 143 S. W. 397. And all three of these elements must
be found m the purchaser who is produced, to entitle the broker to his
commissions. Bronk v. Connecticut Trust, etc., Co, 89 Conn. 134, 93
Atl. 128; Riley v. Hoffman, 216 Mass. 352, 103 N. E. 904; Von Bay-
er v. Ninigret Mills Co., 164 App. Div. 698, 150 N. Y. Supp. 291;
McDermott v. Mahoney, 139 Iowa, 292, 115 N. W. 32, 116 N. W. 788.
The general rule appears to be that the broker is entitled to his
commission when his efforts have resulted in a sale, or in procuring a
customer who is able, ready, and willing to buy upon the terms pre-
scribed by the owner. If the customer is produced who is able, ready,
and willing to buy, the fact that the sale fails through no fault of the
broker and no fault of the customer cannot deprive the broker of his
commission. Home Banking & Realty Co. v Baum, 85 Conn. 383. 386,
82 Atl. 970; Smith v. Peyrot, 201 N. Y. 210, 214, 94 N. E. 662
[8J Where a contract is one not to be performed elsewhere, the cus-
tomer pl oduced should be by the lex loci contractus legally able to en-
ter into the contract. In Volker v. Fisk, 75 N. J. Eq. 497, 72 Atl.
1011, the owner of certain real estate agreed with a broker to sell the
same for $5,700, or any greater sum, and said that she could retain for
her own use all purchase money in excess of that sum. The broker
procured one to purchase the premises for $6,000. Later the purchas-
er, who was an infant at the time the property was purchased, repu-
diated the purchase and recovered back the purchase price. The court
held that the broker never earned the commission, as it was paid on a
Here’s what’s next.
This document can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Legislative Document.
The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/85/: accessed October 18, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.