(dissenting):
I do not think that the evidence justified a finding that the plaintiff had performed the obligation upon which his right to recover commissions depends. He procured his brother and his brother’s partner to sign a contract with the defendant by which the brother and his partner were-to convey to the defendant a' farm in New Jersey as a part consideration for a conveyance by the defendant of this property in question; but I think the evidence shows, beyond *294a doubt, that the persons signing this contract with the defendant never had the title to the farm; never made any contract for the purchase of the farm, and were never in a- condition to fulfill the agreement to convey the farm to the defendant. The defendant certainly could not have compelled them to convey a farm to him which they did not own and over which they had no control, and it was to obtain this farm that the defendant was induced to execute the contract. I do not understand that a broker earns his commission by producing a person to sign a contract for an'exchange of property when such person has no title to the property that lie is to convey and is manifestly unable to perform his contract. The whole evidence shows that the owner of this farm never contracted to convey to the .parties who signed the contract to convey; that they never had authority from the real owner of the farm to promise to convey, and that it was never in their power to carry out their contract. I do not concur with the presiding justice in the statement of the rule that “if the defendant employed him (plaintiff) to effect the exchange, and he brought parties ready and willing so to do, and a contract was entered into binding upon them, it was an acceptance by the defendant of the purchasers proposed by the plaintiff, and he became entitled to his commission, entirely independent of the fact as to whether the defendant could convey or not.” I do not understand that a broker complies with the terms of his employment until he brings a customer, not only ready and willing, but also able to purchase the property upon the terms proposed; and the production of a person ready to sign a contract, but who was manifestly unable to perform it, does not comply with the conditions of employment under which the broker is entitled to recover his commissions.
I do not concur, therefore, in the affirmance of this judgment.
Judgment and order affirmed, with costs.