During April and May the plaintiff secured successive offers for the property from Mrs. Brody, not accepted by the defendant. Mrs Brody did not abandon her desire to purchase, but employed a broker, Pierson, to assist her in the purchase. Through him she offered directly to the defendant $100 more than her last offer made through the plaintiff, which the defendant accepted. No other person than the plaintiff acted for the defendant, either by employment or as a volunteer, and the plaintiff was not discharged by the defendant. The case, put baldly, is: Pierson was Mrs. Brody's agent alone, and therefore his acts were hers. She then comes up $100 more and reports over the head of the plaintiff, defendant's agent, to the defendant, who immediately accepts, and the majority opinion holds that the plaintiff was not the procuring cause of the sale. If this is so, the case of the broker is hazardous indeed. He must isolate the intending vendee so that he cannot procure advice in determining how high a price to offer, and so that the intending vendee cannot report directly to the owner. Suppose Mrs. Brody, after her last offer through the plaintiff, had thought the matter over entirely by herself and then had gone directly to the defendant with a higher offer which was accepted. Could it be reasonably said that the broker was not the procuring cause? And does it alter the case that she employs some one to aid her in coming to a conclusion? It seems to me that the opinion from which I dissent either overlooks the decisive fact that Pierson was the *Page 425 purchaser's agent alone, and in no sense represented the owner, or else holds that reporting the final offer directly to the owner over the broker's head is effective to defeat the claims of the broker. Neither of these alternatives seem to me good law or good business sense.
It is sought to fortify the results reached by two citations which I concede to be good law, but quite irrelevant to the facts of this case. In Earp v. Cummins,54 Pa. 394, the question was upon the correctness of a charge to the jury that "it is the sole business of the real estate broker to bring buyer and seller together." Of course, this charge was held incorrect. But the facts as stated in the opinion were: "Although the property was advertised by the broker, and the attention of the purchaser was first called to it in that way, yet the evidence was that he declined to purchase, and all negotiations for a sale were abandoned for several months, nor was the purchase finally made until other parties again brought the property to his notice, and then Young, the purchaser, says he bought it, not in consequence of Cummins' advertisement, but by reason of this renewed recommendation by other parties. If anybody could tell how he bought, in consequence of what cause, Young himself was the proper witness, and he swore, `I was not influenced by Mr. Cummins at all in making this purchase. I did not know him in the transaction, he had nothing to do with the purchase so far as I know.'" Undoubtedly, with the evidence as stated, the charge was erroneous, and the jury should have passed upon the claims of the purchaser that the original negotiations had been abandoned.
In the present case there was no abandonment of negotiations, no declination to purchase for several months, and no calling the attention of the purchaser *Page 426 after several months by other parties, for Pierson by reason of his employment by Mrs. Brody was in legal effect Mrs. Brody herself.
The other case cited is Whitcomb v. Bacon,170 Mass. 479, 49 N.E. 742. This was a case of two independent brokers each acting for the owner of the property. One of them, the plaintiff, had been employed, but not exclusively, and had not effected a sale, and the proposed purchaser had testified that he never made an offer to the plaintiff but had told him he was done with the matter. Later, another broker, learning the property was for sale, first saw the owner and then opened negotiations with the first proposed purchaser and finally effected a sale. Here, again, the broker effecting the sale was in no sense the purchaser's agent.
I think there was no error.
In this opinion CASE, J., concurred.