(dissenting). My conception of the characteristics of this ease constrains me to dissent from the conclusion expressed in the majority opinion. In obedience to Rule 4:4-6 I shall tersely state the basic reasons for my disagreement.
I assent to the following postulate put forward by the majority:
“Of course, plaintiff earned liis commission if he performed his engagement, whether or not G. M. E. and 0. Corpora lion accepted Driver’s offer: the contract, as testified to by plaintiff, did not condition the payment of the commission upon the owner’s acceptance of any offer produced, and defendant is liable if the offer, though rejected, met the authorized terms. But when Driver’s offer was rejected, neither G. M. E. and O. Corporation nor Everett was questioning plaintiff's services or Driver’s financial readiness and ability. In effect, the property was withdrawn from the market and plaintiff’s agency was terminated. If at that time plaintiff had performed his services he was entitled io his commission; otherwise, he was not.”
The opinion continues: “The burden, however, was upon him to show that he had performed and an essential element *256of his proof of performance was that Driver was a purchaser ready, able and willing to buy.” If recognized as an abstractly stated academic principle, I have no inclination to impugn it.
Our divergence of opinion seems to originate from a dissimilar interpretation of the evidence and consequently its appearance from a legal viewpoint.
It is obvious from an observance of the citations contained in the majority opinion that my associates consider the same rules and principles of law which pertain to a contractual relationship between a broker and an owner to be applicable to the agreement of employment with which we are concerned in the present case.
If I were to yield to that assumption, I would nevertheless be obliged to disagree with their conclusion. Here, the only reason assigned by the president of the defendant corporation for the refusal to consummate the contract of purchase to which the purchaser procured by the plaintiff had legally committed himself by the execution of the contract and by making the requisite deposit of $3,000 was that “very much to my surprise and chagrin Mr. Garfínkel and Mr. Mettle concluded at the last moment that they will not dispose of the property at this time." (Emphasis mine.)
In this situation I perceive the more preferable rule of law to be that where a broker produces a purchaser who executes a binding contract to buy in accordance with the owner’s terms of sale, the owner’s refusal to execute the contract without a valid reason, viz., as here, merely abandoning his desire to sell, is arbitrary and capricious and that the broker in order to recover his commission is not required in such circumstances affirmatively to prove the purchaser’s ability further to perform his undertaking. Jacobs v. Rothschild, 197 Pac. 2d 951 (Sup. Ct., Okla., 1948—rehearings denied); Stokes v. Wolf, 112 A. 566 (Ct. App. Md., 1921); Rifkind v. Turner, 52 A. 2d 501 (Mun. Ct. App. D. C., 1947); Stanton v. Barnes, 72 Kan. 541, 84 P. 116 (Sup. Ct. 1906); 156 A. L. R. 602.
*257Moreover I think it is the settled law that an owner cannot thereafter assert as a defense to an action for the broker’s commission improvised reasons and grounds for his refusal which were not manifested at the time and as a basis for the rejection of the offer. In Volk v. Atlantic Acceptance & Really Co., 139 N. J. Eq. 171 (Ch. 1947), I made the comment: “Upon the institution of this suit, learned counsel have been able to supply the defendant with some auxiliary reasons * *
Therefore if it is to be determined that the conduct of the owner is relevant in the present action, the evidence persuades me that the rules to which I have adverted are accordingly applicable.
I entertain the impression that my colleagues have too impj-ovidently cast aside the realities of the present case. I am influenced by the fact that the defendant, not the owner, engaged the services of the plaintiff. The agreement in suit was one solely between the plaintiff and the defendant. The president of the defendant participated in the preparation of the written contract of sale which was duly executed by the purchaser, accepted delivery thereof, received the deposit, and ultimately expressed his “surprise and chagrin” at the arbitrary refusal of the defendant’s client to consummate the bargain. The jury evidently believed, and I think with abundant justification, that the plaintiff fully and satisfactorily performed all the services expected of him by the defendant pursuant to the agreement of employment.
The course of reasoning pursued by the majority is exposed by the following excerpt from the prevailing opinion:
“Hera, the plaintiff knew that G. M. E. and C. Corporal ion, and not the defendant, was the owner and that his engagement was to effect a sale for G. M. E. and C. Corporation. The proofs do not show that the defendant’s agency included the authority to accept a proposal on behalf of G. M. E. and C. Corporation, and without such proof there is no basis for the contention that the case is within the holding in Thompson v. Briscoe, supra. Plaintiff was aware, therefore, that G. M. E. and C. Corporation was free to and might reject, as it did, the offer of a purchaser produced by plaintiff who was *258tendered by him as ready, willing and able to meet the terms of sale. Thus, there being no evidence sufficient to support an inference either that Everett bound defendant to pay the commission whether or not the owner accepted the proposal, provided plaintiff produced a buyer satisfactory to Everett, (which is the deficiency in the proof which distinguishes Calabrese v. Adelman), or that defendant had authority to bind the owner to a sale, plaintiff was not relieved of the burden of establishing Driver’s financial readiness and ability to complete the transaction.”
It is my conviction, that the foregoing dialectics are bnilt upon the sands of irrelevancy and sophistry. This plaintiff was employed by the defendant to solicit a purchaser whom the defendant could for its own benefit introduce to its client. Whom the defendant might employ for its purpose was no affair of the owner. The existence of a relationship of principal and agent between the owner and the defendant was wholly immaterial. Nor does the fact that the plaintiff had knowledge of the name of the owner have any legal importance. Why was the plaintiff obliged to prove that his employer had “the authority to bind the owner to a sale?” Moreover, do not all brokers understand that the owner is “free to and might reject” without just cause and at his peril “the offer of a purchaser ?”
It is the introduction of those subjects of consideration in the review of the present case that also arouses my disapproval.
Lastly, I am not convinced that the evidence disclosing that the purchaser executed the contract to buy, made the requisite initial payment, and that the owners declined to complete the bargain only because they “concluded at the last moment that they will not dispose of the property at this time,” did not constitute prima facie proof of the recognized ability of the purchaser to perform, sufficient to oblige the defendant to go forward with evidence of the purchaser’s financial inability.
Eor those reasons I record my dissent.