(after stating the facts.) This is an appeal from a judgment refusing compensation to plaintiff, Geo. C. Lewis, for negotiating an agreement to purchase land. The contract of sale is set out in the statement of facts. The addendum thereto represents the contract made between the plaintiff and defendants. The language of it is: “We agree to above contract. Out of this price we are to receive $8,000 net to us. The balance of purchase price $1,600 is to be paid to Geo. C. Lewis as commission for sale of said land.” This was signed by Briggs and his wife.
It will be noticed that under this agreement $8,000 net was to be paid to Briggs and wife, and that Lewis was to receive only the balance left after the payment of this $8,000 to Briggs and his wife. If the contract had been carried out in good faith by both parties, Lewis could have claimed nothing until Briggs and wife had received the $8,000 which was to be paid to them. But it is undisputed that only the $400 referred to in the contract as having been paid in cash was ever received by the defendants. They have never received the $8,000 which they were entitled to under the contract, for it was never paid, and there is no contention that any portion of the $1,600 which Lewis was to receive has ever been paid to or received by defendants. Under the terms of this contract, Lewis does not make out a case for recovery against the plaintiff by showing that he secured a contract with solvent parties to purchase the land. He must under this contract show either that defendahts have received some part of the balance of the purchase money to which he was entitled or that the parties who agreed to purchase were ready, willing and able to perform their part of the contract, and that they were prevented from doing so by the default or failure of the defendants to perform their part of the contract.
Now, it is certain that the parties who had agreed to purchase afterwards declined to do so. Whether their failure was caused by the fact that defendants refused to make any reduction from the price on account of the right of way which the railway company owned or claimed across the land, or whether it was due to other causes, is not made very clear by the evidence, though the case turned entirely on that point. But it seems to us that the question on which the case turned was fairly and clearly presented to the jury by the instructions of the court, and that the court did not err in refusing those asked by plaintiff. To return a verdict in favor of the defendants under the instructions given, the jury must have found that the act of the purchasers in failing to pay the purchase price w.as not due to any fault of the defendants. These purchasers were nonresidents, and there was nothing in the contract that required the defendants to bring suit against them on their failure to pay. Under this contract, so lor^g as the purchase price was unpaid, and so long as defendants were not to blame for its nonpayment, they are not liable.
We are therefore of the opinion that the judgment should be affirmed, and it is so ordered.