I think there is substantial evidence in the record to show that the owner, Mrs. Franklin, on the 1st day of March, 1945, called the brokers' office and advised them that the property, the sale of which is involved in this suit, could then be shown for sale and that he could list it in his office for sale; that *Page 483 Mr. Hull, the salesman for the broker, thereafter took Mr. Kendall to the apartment and introduced him to Mrs. Franklin. That Mr. Kendall looked over the property and offered to pay Mrs. Franklin $50,000.00 for it; that Mrs. Franklin agreed to accept $50,000.00 for the property; that after the offer was made and accepted Mrs. Franklin told Mr. Hull that the contract for the sale to Mr. Kendall would have to be dated after May 1st because another broker had the exclusive listing of the property until that date; that thereafter, on March 31, 1945, the contract was executed wherein L.L. McMasters agreed to sell and Henry Kendall agreed to buy the property at the price of $47,500.00 and Mrs. Franklin executed an agreement at the bottom of the contract as follows:
"I or we hereby accept the offer and agree to deliver the above described property at the price and upon the term and conditions herein stated and I or we have agreed to pay the above broker for services in negotiating this contract." — that $2,000.00 was paid as a binder by Clementine Japour whom Mr. Kendall had introduced to Mr. Hull and Mrs. Franklin, on the day when he inspected the property, as his fiancee. On the same day, March 31st Henry Kendall made a contract with J.E. Burnham for the purchase and sale of the property whereupon, at the direction of Mr. Kendall's Attorney, deed was made by Mrs. Franklin conveying the property as per the contract between Mr. Kendall and Burnham.
It appears to me that it is immaterial whether Kendall at the time he agreed to pay the $50,000.00 for the property then had the cash sufficient to pay for it. The record shows that afterwards a contract was executed in his name for the purchase of the property at $47,500.00 and that thereupon he executed the contract to sell the property at $55,000.00; whereupon, conveyance was made in accordance with the terms of his contract to sell.
So it is that my conclusion is that when Mrs. Franklin executed the contract to sell the property to Mr. Kendall at less than $50,000.00, and that contract was closed by her conveying the property in accordance with Mr. Kendall's contract of sale, she became bound to pay the broker, Boardman (who was the real estate broker for whom Hull acted) *Page 484 5% of the purchase price which she accepted for the property when she conveyed the property to Mr. Kendall's assignee, and that she got herself into the position of becoming liable to Mr. Boardman by her own act and conduct for which no misconduct or unfair dealing on the part of Boardman was in anywise responsible.
Therefore, I think the judgment should be affirmed.
THOMAS, C. J., and ADAMS, JJ., concur.