(dissenting):
I do not think that this judgment can he sustained upon the ground that the plaintiff never produced a purchaser ready, able and willing to make the exchange, to recover the commissions for which the action was brought. It is true that the purchaser executed a contract for the exchange of the property of which the purchaser was not the owner, but which he was. to exchange for the defendant’s property, and that was known to the plaintiff and all interested. It was perfectly understood that the purchaser’s power to acquire the property which he was to convey to the defendant depended upon his getting a loan on the property which the defendant was to convey. The actual execution of the contract in the form in which it was executed was made,on the suggestion of the plaintiff, and the verbal agreement that the contract was not to be enforced if the loan was not obtained was, I think, established by a great preponderance of evidence: The defendant has a contract which he cannot enforce. He made no actual sale of his property, and the services rendered for him by the plaintiff were of no possible value to him. This contract could not be specifically enforced because the purchaser did not own the property, and all parties concerned in the transaction knew it. Mor do I think the evidence shows- the value of the defendant’s property upon which an award of commissions could be predicated. There was no specific agreement to pay the commissions, and the plaintiff must. depend upon the implied contract; and I think the evidence fails to establish that he complied with his contract, or that, there was any basis upon which the commissions could be estimated.
I think the judgment should be reversed.
Dowling, J., concurred.
Judgment and order affirmed, with costs.