Alison

Plaintiff brought this action upon an assigned claim of one Irving against defendant for a commission in a real estate transaction.

There are two questions in the case, one perhaps vital, and the other certainly so. The first is whether Adolph Uhl, at the time of the transaction in question, was able to pay twenty-one thousand five hundred dollars for the property involved therein; and the other question is whether the words, “when the sale is consummated,” as used in the contract of sale, are to be construed as meaning when the deed was passed and the deal closed.

The controversy arose in this way: The defendant in writing authorized Irving to sell certain real property for him at a price of twenty-two thousand dollars, and agreed to pay a commission of five per cent if the property should be sold within the time mentioned in the contract. Irving found a purchaser in Adolph Uhl at twenty-one thousand five hundred dollars, and entered into an agreement of sale and purchase with him at that price, taking a five hundred dollar deposit on the property. The defendant Chapman accepted this five hundred dollars payment and agreed to the sale of the property under this contract, but…