When an agent is employed to find a purchaser for land for his principal, it is unquestionably the agent's duty to disclose to his principal the name of any purchaser alleged to have been procured. If he refuses to do so, the principal may decline to proceed, so far as such unknown purchaser is concerned. But when the agent is commissioned to sell on stated terms, and makes a written agreement of sale which is binding upon the purchaser, there is no occasion for his disclosing the name of the purchaser to his principal until the latter is ready to execute a deed concurrently with the purchaser's performance of the obligations resting upon him. Unless otherwise stipulated, the obligations of seller and purchaser are concurrent, and neither can complain of a default by the other, unless he has himself first tendered performance in accordance with the terms of the contract of sale, and requested performance by the other. See Mattingly v. Pennie,105 Cal. 514, 39 P. 200, 45 Am. St. Rep. 87; 39 Cyc. 1567, 3. In the instant case, the obligations of the seller to his agents are fixed by his last written agreement with them, dated September 13, 1915. It recites:
"Whereas they have now secured a purchaser who is ready, able, and willing to purchase said farm on the following terms, to wit: One thousand six hundred eighty-seven dollars and fifty cents ($1,687.50) when deed and abstract is furnished showing a good title to said lands, and balance of eighteen thousand dollars ($18,000) in purchase-money notes secured by mortgage, etc. I therefore agree to furnish said deed and abstract to the purchaser, conveying by warranty deed the lands mentioned above, between now and January 1, 1916, and shall give full possession to the purchaser not later than January 1, 1916, provided he has complied with the abovementioned terms of purchase. I further agree to pay the Sharp Real Estate Company 5% of the entire purchase price when the deal is closed."
Under this agreement it is clear that the plaintiff company could not collect the commission for making the sale until the sale was consummated according to its terms, or upon substituted terms, unless the defendant, the seller, wrongfully refused or failed to execute the sale on his part. Birmingham Co. v. Thompson, 86 Ala. 146, 5 So. 473.
It may be conceded that this agreement shows an acceptance by the seller of the purchaser secured by plaintiff, though his identity had not been disclosed to him. But it is, we think, an elementary proposition of law that under the agreement the initiative was cast upon the purchaser to inform the seller when he was ready to close the purchase, by making the cash payment required. There is no evidence that this was done. Indeed, the undisputed evidence shows that the purchaser, through the medium of plaintiff, attempted to procure the deed by offering a check for $500, the amount required being $1,687.50, and without offering to execute the notes and mortgage to secure the balance of the purchase money. This was not only a failure to comply with the agreement, but was evidence to show that the purchaser was not then ready and able to meet the stipulated terms of purchase.
It is to be noted, also, that the seller's obligation was to furnish the deed and abstract of title to the purchaser. This meant, by necessary implication, that the purchaser's name would be disclosed to the seller within the period in which the deed was to be made, by January 1, 1916, for a deed cannot be executed effectively without the name of the grantee.
Under the evidence, however, it was a question of fact whether or not defendant waived the actual offer of performance by the purchaser, by himself refusing to perform, in the face of the announcements by or for the purchaser that he was ready to perform whenever the seller would make the deed. This was really the only material issue of fact, and was submitted to the jury under proper and comprehensive instructions. Charges 1, 2 and 4, refused to defendant, were fully covered by the oral charge.
It was of course not improper for plaintiff to act for the purchaser in any way not inconsistent with his duty to his principal, the seller. Charge 5 was entirely too broad in this respect, and was properly refused.
Charge 6, asserting that plaintiffs must have produced a purchaser known to defendant to be able, ready, and willing to execute the contract, was obviously incorrect, and was properly refused.
It was entirely proper for plaintiffs to show that they had at all times informed defendant that the purchaser they had sold to was able, ready, and willing to make the cash payment. It was, in fact, their duty to so inform defendant, if they knew it was true.
That the written contract of purchase made by Westmoreland showed that plaintiffs were the agents of defendant was relevant evidence. If it was objectionable as being secondary evidence of a writing, the absence of which was not properly accounted for, that objection was not stated, and the objection actually made was properly overruled.
If there was any error in sustaining the demurrers to pleas 4 and 6 it was without prejudice to defendant, for he clearly and fully had the benefit of the matter set up in each of these pleas under the general issue and other special pleas.
Considering the entire record, we think the case was fairly submitted to the jury on its material issues, and no error appears which ought to work a reversal of the judgment.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur. *Page 668