Pellaton

Action to recover the sum of $2,750 as a commission under a broker’s contract providing for the exclusive sale of certain real property.

Plaintiff alleges that defendant entered into the contract on the twenty-eighth day of November, 1922, and that by its terms he was authorized to sell the property in question for the sum of $55,000 upon a five per cent commission. The complaint, proceeding, recites that on the nineteenth day of December following plaintiff obtained a purchaser for the property described in the agreement who was then and there ready, willing, and able to complete the purchase upon the terms and conditions of the authorization. It is then alleged that defendant failed and refused to make the sale or to carry out any of the terms of said agreement, and judgment was prayed for the full amount of the stipulated commission. At the trial no question was raised as to the amount, it being agreed that if plaintiff was entitled to recover judgment the amount should be as demanded.

The trial court found in conformity with the allegations of the complaint and rendered judgment accordingly, and .the defendant appeals.

The only point presented for the reversal of the…

Dissenting.—I dissent for the reason that

the evidence wholly fails to show that the plaintiff produced a purchaser ready, willing, and able to buy upon the terms proposed by the seller. All three of these elements must exist in the customer, in order to entitle the broker to his commission, and it is not sufficient that the customer is ready and willing, but he must also have the ability to carry out the purchase; he is not required to have legal tender in hand with which to pay, unless the price is required to be paid in cash, in which ease the fact that he has property out of which the required payment may be made is not sufficient (9 Cor. Jur., sec. 88, p. 599). A proposed purchaser is not able, when he is depending upon third parties who are in no way bound to furnish the funds, to make the purchase. The contract required that the purchaser pay $20,000 in cash The purchaser testified that he was financially able to pay. Asked to explain, he said that he had arranged with Mr. De Lancey for a loan, “that was to be known as a second mortgage of $12,000.” “I was securing that money from his (De Lancey’s) wife—the balance of the money I had in the bank, and negotiable papers,…