§ 271. § 272. Real estate brokers-when their commissions are due. § 277. § 278. § 279. Presumptions of knowledge of consignor as to usages of trade. § 280. Innocent pledgee of factor not protected. § 281. Consignor may recover of pledgee value of goods. § 282. Ignorance that goods were consigned, no defense to pledgee. $283. Consigned goods not liable for factor's debts. $284. Factor must obey consignee's orders. § 285. § 286. Purchase by factor of goods consigned to him. $287. Objections to employment of "middle-men." § 288. Farmer may sell produce without license. § 268. A factor differs from a broker materially, in respect to the duties and responsibilities of his position, and his power with reference to the business of the principal. A broker buys and sells in the name of his principal; he is a special agent, employed to make bargains and contracts between other persons, receiving, as a general thing, his remuneration by means of a commission. He is merely a negotiator between the other parties, and acts in the name only of his em ployer; the property, which he is employed to buy and sell, is not intrusted to his custody or possession, and he is not authorized to buy and sell it in his own name.1 11 Bouvier's Law Dic. "Brokers"; Dunlap's Paley on Agency, Sec. 13; Story on Agency, Sec. 34. "A factor differs from a broker in some important particulars. A factor may buy and sell in his own name, as well as in the name of his principal. A broker is always bound to sell in the name of his principal. A factor is intrusted with the possession, management, control, and disposal of § 269. Sold note and bought note.-In making sales, the custom is for the broker to give to the buyer a memorandum of the transaction, which, in commercial parlance, is designated a "sold note," and to the seller a similar memorandum, which is called a "bought note"; in the transaction he is the agent of both parties, and they are respectively bound by his contract and his memoranda thereof; the bought and sold notes become the contract of the parties, provided the agent has acted fairly, and within the scope of his authority.1 In signing the contract of purchase and sale, the broker's memorandum thereof, signed by him as the agent for both parties, is sufficient under the Statute of Frauds.2 § 270. The broker is the agent of the seller in making the sale, and after it is closed, for certain purposes, becomes agent for the buyer. Although sometimes the agent for both parties, primarily the broker is agent only for the party who has employed him, and it is only when the bargain is completed that he becomes the agent of the other, and then only to the extent requisite to effectuate the purpose of his employment.1 the goods to be bought or sold, and has a special property in them, and a lien on them. A broker, on the contrary, usually has no such possession, management, control, or disposal of the goods, and, consequently, has no such special property or lien." (Pickering v. Busk, 15 East, 38, 43; Coddington v. Goddard, 82 Mass. [16 Gray] 436; Baring v. Corrie, 2 B. & Ald. 147.) 1 Stcry on Agency, Sec. 28; Hinckley v. Arey, 27 Me. 362; Rowe v. Stevens, 53 N. Y. 621, in which, it appearing that, from the nature of the transaction and proceedings had, each party employed the broker, both were held liable to pay for his services. The name of both buyer and seller should appear on the "bought" and "sold" notes. Esp. 114, 115.) (Champion v. Plumer, 4 Bos. & Pull. 252; Picks v. Hawkin, 4 2 Rucker v. Cammeyer, 1 Esp. 106; Browne on Statute of Frauds, Sec. 347. "It is clearly settled that the bought and sold notes together constitute a binding memorandum, though the broker make no entry in his book." (Hawes v. Foster, 1 Moo. & Rob. 368; Hicks v. Hawkin, 4 Ibid, 114; Chapman v. Partridge, 5 Ibid, 256; Dickerson v. Lilwall, 1 Stark. 128; Soames v. Spencer, 1 Dow. & Ry. 32; Short v. Spackman, 2 Barn. & Adol. 362; Grant v. Fletcher, 5 Barn. & Cress. 436.) 3 Story on Agency, Sec. 31. "It has already been suggested that a broker is, for some purposes, treated as the agent of both parties. But, primarily, he is deemed merely the agent of the party by whom he is originally employed; and he becomes the agent of the other party only when the bargain or contract is definitely settled, as to its terms, between the principals." (Hinckley v. Arey, 27 Me. 362.) And it behooves the person dealing with a broker to guard against accepting service from him, in the premises, before the trade is closed, and, in all respects, No power of substitution can be implied by the broker from the business being intrusted to him; it is the broker's individual capacity and probity which is relied upon, and he cannot ordinarily delegate his authority to a sub-agent, clerk, or other person, without the assent of his principal, either express, or properly implied from the circumstances.1 § 271. Real estate brokers-Their commissions are due, when. The commissions of a real estate broker being the consideration upon which he renders service, and it being impossible for him to control the conduct of his employer in the matter of consummating sales to find arrearages for which the employment has been given and accepted, the law extends to the broker protection from the caprice of the vendor by allowing him the commission when it is earned, whether the sale is consummated or not. If, through the agency of a real estate broker, a sale is effected, and if his communications with the purchaser are the means of bringing the parties together, and the sale results in consequence, the compensation is earned, even if at the sale the broker is not present; and the same rule applies where a broker is employed to purchase real estate.2 to treat the broker as the representative of the person who has employed him, to the extent of the employment only; for if the broker sells the property in his own name, without some special authority so to do, inasmuch as he exceeds his proper authority, the principal will have the same rights and remedies against the purchaser as if his name had been disclosed by the broker. (1871, Graham v. Duckwall, 8 Bush, [Ky.] 12.) 1 Story on Agency, Sec. 29; Ibid, Sec. 109; Henderson v. Barnwall, 1 Y. & Jerv. 387; Cockran v. Irlam, 2 M. & S. 301; Paley on Agency, 241. 2 Lloyd v. Matthews, 51 N. Y. 124. Brokers are entitled to commissions if the sales were made through their agency, as their procuring causes. So held in Knap v. Wallace, 41 N. Y. 477. "A real estate broker, employed to purchase real estate, earns his commission when he has, in good faith, brought to his employer a vendor, who makes a written contract with him for the sale of the property. It is no answer to his claim for commissions against such employer, that the vendor could not make a perfect title, and was therefore unable to carry out his contract of sale." Redfield v. Legg, 38 Ibid, 212; Moses v. Bierling, 31 Ibid, 462; Woods v. Stephens, 46 Mo. 555; Hogue v. O'Connor, 1 Sweeny, (N. Y.) 472; 41 How. Pr. 287; Smith v. Smith, 1 Sweeny, (N. Y.) 552. Phelan v. Gardner, 43 Cal. 306. "If the owner of land employs another person to sell for him his land at an agreed rate of commission, and the broker finds a purchaser who is willing to take the land at the price fixed, the owner cannot, by a refusal to sell to him or by a sale to another, avoid the contract and escape the payment of the commission." (Blood v. Shanam, 29 Cal. 393.) But if, by the terms of his contract, the broker covenants to sell within a stated time at the price agreed upon, and time is made the important element of the employment, he receives the property only for the purpose and to the extent stipulated; hence, he has no lien or claim for brokerage after the time has expired, unless he has made the sale; and the owner of the land may, if he please, sell to a party who came to him at the solicitation of the broker, at a less price and free from the commission.1 § 272. Implied warranty of title by vendor to broker.— The title of the vendor is not to be considered by the broker: he is to sell the land; to bring to the vendor a person able and willing to buy at the stipulated price; and if, when the sale is to be consummated, it appears that the title is so far defective as to defeat the sale, the vendor may be held to pay the commission, for the service has been rendered, the commission earned, and the defect in the title is the misfortune of him to whom the land belongs,2 unless the broker, at the time of accepting the employment, knew of the defect.3 "The conditions precedent to a right to recover, in an action for brokerage, must be the original discovery of the purchaser; the starting of the negotiations by the broker, and a final closing of the bargain by or on behalf of the principal." (Wallace v. Simpson, New York Marine Court, General Term, July, 1875.) 1 Where, by a contract with the owner of real estate, the broker is bound to sell at a given price and within a limited time, if he does not sell for that price and within that time the contract is at an end, and the owner may then sell the property to a purchaser procured by the broker at a less price and free from the broker's commission. (Sattherthwaite v. Vreeland, 48 How. Pr. R. 508.) This case, among the latest, appears to put the broker somewhat at the mercy of the vendor of real property, in that the latter might induce the broker to give his services in the hope to sell within the prescribed period at a price higher than the seller hoped to realize, and when he had brought the parties into communication, and the trade fell through because of the unreasonable price charged, the vendor would have but to allow the period of time to expire and then sell at the lower price, (which was his true one all the time) and defraud the broker. The case is in this connection at variance with the general tenor of decisions, but is supported measurably by Jacobs v. Kolff, 2 Hilton, 133; Hooley v. Townsend, 16 How. Pr. R. 125; Barnard v. Mennott, 33 Ibid, 440; Doty v. Miller, 43 Barb. 529; Briggs v. Rowe, 4 Keyes, 424. These cases state the proposition that the relation is one of contract; that the vendor for the period limited, or for a reasonable time where no limit is designated, is to hold the land ready for sale at the designated price, but no further restricts him in the exercise of control over his property, and at the end of the time resumes the control absolutely. 2 Jones v. Adler, 34 Md. 440; Nesbit v. Helser, 49 Mo. 383; Middleton v. Find la, 25 Cal. 76; Ibid, 81; Case of The Monte Allegre, 9 Wheat. 644. 3 Toombs v. Alexander, 101 Mass. 255; Bell v. Kaiser, 50 Mo. 150; Tyler v. Pars, 52 Mo. 244. So it has been held that where a broker acted for both parties in an exchange of property he might claim commissions from each.1 If, after having employed a broker, the owner, without revoking the agency, make the sale, the commission is payable, or at all events half commission under local custom, or a ratable proportion of what his commission would have been.2 § 273. Factors, their duties and powers.-A factor is distinguished from a broker by being intrusted with the possession and disposal of property intrusted to him for sale by him to whom the property belongs; the factor is clothed with such apparent ownership as enables him to deal with the property as his own; he may sell it in his own name, and the principal is bound by the sale as though he had made it himself, and it thence results that the factor may, in his own name, receive and receipt for payments. The definition of the word "factor," most generally received, is: "An agent employed to sell goods or merchandise, consigned or delivered to him by or for his principal, for a compensation, commonly called factorage or commission." 3 And this definition appears fully to serve its purpose; but the prevailing custom of compensation to factors being by commission upon sales made by them, while they are apparently dealing with their own property, has caused them to be more commonly known as commission merchants, where acting as domestic factors, and residing in the same country with their principals ; and as consignees when living abroad, and engaged in the business of a foreign factor.4 1 Muller v. Kertzleb, 7 Bush, (Ky.) 253; Rupp v. Samson, 86 Mass. 398. But see Lloyd v. Colston, 5 Bush, 587, in which the converse has been held. 2 Jones v. Adler, 34 Md. 440; Walton v. New Orleans, 23 La. An. 398; Martin v. Sillman, 53 N. Y. 615. "A real estate broker, who claims a commission on the sale of real estate, is entitled to the same, if he shows an employment, and that the sale was made by means of his efforts or agency. If the purchaser is found through the broker's instrumentality, he is entitled to his commission, although the owner negotiates the sale himself, and although the purchaser is not introduced to the owner by the broker, and the latter is not personally acquainted with the purchaser." (Sussdorff v. Schmidt, N. Y. Court of Appeals, August 1874; A. L. J. August 22d, 1874.) 31 Bouv. Dic. 570; Dunlap's Paley on Agency, Sec. 13; Story on Agency, Secs. 33, 34, 111, 112; Graham v. Duckwall, 8 Bush. (Ky.) 12. 41 Bouv. Dic. 570. "A domestic factor is one who resides in the same country |