The plaintiff was employed by the defendants to sell their land. He effected a sale with a designated purchaser, one Wehr, who entered into a binding contract therefor, subject only to the conveyance of a good title, to be approved by Wehr's attorney. Prior to January 1, 1919, the time limit for consummation, it was known that an impediment existed which prevented such approval, and the contract — with an unimportant modification — was extended by mutual agreement until March 2, 1919. There was no formal withdrawal from the contract on or after that date by either party, but on March 13th Wehr's attorney wrote to him, to the defendants, and to the depository bank that the title was defective, for a specific reason, and could not be approved, and on that day Wehr withdrew from the bank his earnest money deposit of $1,000, of which action plaintiff was not informed until about April 1st. In the meantime, on March 21st, defendants deposited their deed to Wehr in escrow with the bank, and wrote a letter to Wehr, informing him of that action, "done in accordance with the terms of said written contract," and that the "bank is authorized and directed to deliver same to you upon compliance by you with terms and payment as provided in said contract," and that "in making this tender we merely manifest our willingness and readiness to comply with the terms of the contract imposed upon us." On the same day a similar letter was delivered to the bank, with appropriate instructions for delivery of the deed to Wehr upon his payment of the amount required. Thereupon plaintiff conferred with Wehr, and Wehr conferred with his attorney, and on April 11th Wehr paid the money and received the deed.
It is clear that either party to the sale might have withdrawn from the contract on January 1, 1919, or afterwards on March 2d, and on any day thereafter prior to Wehr's action on April 11th. However, neither of them did so, and, so far as defendants are concerned, the matter was always in fieri; and, notwithstanding Wehr's temporary withdrawal of his deposit, the consummation on April 11th was nothing less than the final execution by both parties of their written agreement, which was never abandoned, since both parties deliberately waived their right of abrogation based upon the lapse of the time within which they were formally bound. As to plaintiff's undertaking and service, they were fully discharged when he procured the execution of the written contract of sale and purchase between the defendants and Wehr, though his compensation was contingent upon the acceptance of the title as marketable by Wehr's attorney before the period therefor expired by express limitation, or, otherwise, before the offer by defendants was actually withdrawn. Under the conditions here exhibited, it seems clear that the fruition of the contract according to its terms entitled plaintiff, both in law and in good conscience, to the stipulated compensation.
But, as the amount of that compensation — the excess of the purchase money over $10,000 — was expressly contingent upon defendants' receipt of $10,000 net on or before January 1, 1919, we think the law would imply an understanding between the parties that defendants should be compensated for any delay in its payment, beyond that time, by interest at the legal rate, and that such interest should be in abatement of plaintiff's originally stipulated commission, necessarily so, in order to meet the stipulation that defendants should receive $10,000, net, on January 1st. This, it seems to us, is the equity *Page 201 of the case, and the equity of the case ought to determine the law of it.
The excess of the purchase money over $10,000 was $1,183.33. Deducting from this sum $225.15, the amount of the expenses to be borne by plaintiff (as to which there was no dispute), and deducting, also, the further sum of $226.66, the amount of interest necessary to give to defendants the equivalent of the sum to which they were entitled as of January 1, 1919, there remained due to plaintiff the sum of $731.52, upon which interest should be allowed from April 11, 1919, to September 30, 1919, the date of the judgment. It results that plaintiff was entitled to recover the sum of $759, and that the instruction and judgment for a larger sum were erroneous.
Other rulings of the trial court on pleadings and evidence are not argued in brief, and will be treated as waived. The judgment of the lower court will be corrected as above indicated, and, as corrected, will be affirmed, contingently upon plaintiff's acceptance of such correction by entering his assent of record in this court within 30 days hereafter. Otherwise, the judgment will be reversed, and the cause remanded for another trial.
Corrected and affirmed, conditionally.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.