It is familiar law that a real estate broker is not entitled to commissions for making a sale of real estate for his principal, unless he strictly performs the services required of him according to the authority conferred upon him.
In the case in hand, the defendant, claiming to have been “ seised at law and in equity” of a mining claim in the State of Nevada, authorized the plaintiff by an instrument in writing, to sell the claim at any time within sixty days from the first day of July, 1878, for such a sum of money as would net him sixty-five thousand dollars; and any surplus which might be realized from the sale, he agreed to divide equally between the plaintiff and himself, and to pay out of his share of the surplus whatever expenses might -be.incurred in making the sale.
*566No other terms were prescribed. Under this authority the plaintiff, as agent and attorney in fact of the defendant, on August 21,1878, entered into an agreement in writing with one Hedger to sell and convey to him “ the absolute title to the property,” within twenty days from the date of the agreement, for the sum of seventy-five thousand dollars, payable on condition that Hedger would be satisfied with the title and that the defendant would sign, ratify and approve the agreement.
Hedger was able to pay. Negatively it'appears that there was no fault in the title to the property; that Hedger took no steps to satisfy himself about it, and that he never demanded of the defendant to consummate the alleged purchase by a conveyance of the title. It also appears, affirmatively, that the defendant refused to sign the agreement in writing between Hedger and the plaintiff, and that the former, on August 27, 1878, notified the latter, that he considered himself released from all obligation to purchase.
There was, therefore, no actual sale of the property. Hedger was not a purchaser ready and willing to buy, nor did the defendant refuse to consummate a purchase by the conveyance of his title; he did refuse to sign the agreement in writing between Hedger and the plaintiff: but he was not bound by his contract with the plaintiff to sign any agreement in writing which the latter might make with a person to whom he offered the property for sale; and in refusing to do what he was not bound by his contract to do, the defendant was not at fault.
As an agent, the plaintiff could only bind his principal within the scope of his authority. It was not within the scope of his authority to make a conditional or contingent sale. Such a purchase, the defendant was not bound to accept. He had the right to determine for himself whether the offer to purchase upon such a contingency, as was agreed to by his agent, was made in good faith, and to refuse or accept the offer. And Hedger was not bound to purchase if the contingency which he presented, did not happen.
As, therefore, the plaintiff’s claim to compensation was, by his own unauthorized act, made dependent upon an act which his principal was not bound to perform, no recovery can be *567had upon it. A real estate broker is not entitled to recover commissions for a conditional sale of real estate which fails of actual consummation by no fault or fraud of the owner of the property. (Hinds v. Henry, 36 N. J. L. 333; Walker v. Tirrell, 101 Mass. 257.) Therefore I think the judgment and order of the Court below was correct, and should be affirmed.