Oh the 10th of May, 1871, the defendant placed in the hands of the plaintiff, who was a real estate broker, a piece of real estate for sale or exchange. Soon after-wards, Uriah Clinton placed in the hands of the plaintiff a certain other piece of real estate, also for sale or exchange. The plaintiff negotiated between Clinton and the defendant, and effected an agreement between them for the exchange of their respective properties. This agreement was reduced to writing, duly executed, and makes part of the record. Clinton failed to perform the agreement on his part, and so without the fault of the defendant the exchange of the estates, as agreed, was not made.
The plaintiff claims to recover his commissions as if the sale or exchange had been consummated. The defendant resists payment because the object for which he employed the plaintiff, and on which his compensation depended, has not been attained. Whether or not the plaintiff is entitled to recover, is the question reserved for the advice of this court.
On examining the contract entered into by the defendant and Clinton, dated the 16th of June, 1871, we find that it was mutually understood and agreed between them that each should immediately take possession of the other’s property, described in the contract, and have the exclusive possession of the same, free of rent or other charge, until the 12th of August, 1871; and that on or before that day each of the parties should convey to the other, in consideration of the other’s conveying to him, their said several pieces of real estate; thus exchanging the same. There were certain stipulations as to improvements to be made on one of the pieces of property, and certain arrangements as to the policies of insurance, &c., which it is unnecessary to consider.
Now had this contract been consummated—had Clinton given the defendant a conveyance of his property, and received from the defendant a deed of his in exchange, according to the agreement, it cannot be doubted that the plaintiff would have been entitled to the commissions now demanded. And for the conclusive reason that he would have done just that, and all that, which the defendant employed him to do; just *226that and all that which he undertook to do. The defendant would have obtained a property more valuable, in his estimation, than the one with which he had parted; so much more valuable that he preferred paying the plaintiff the compensation demanded for negotiating the contract which enabled him to obtain it.
In looking a little further into this agreement, we find that for the sum of five hundred dollars the defendant was willing, and for that sum he agreed, to discharge Clinton from his obligation to perform this contract. These arc the words: “It is further mutually agreed by said parties that if either of them shall neglect or refuse to perform the promises and agreements binding upon him as hereinbefore mentioned, he shall pay to the other on demand the sum of five hundred dollars as liquidated damages.”
Now though the plaintiff has not effected a sale or an exchange of the defendant’s property, yet he has negotiated a contract for such exchange; agreed to by the defendant, in which contract a sum of money is specified which the defendant agrees to accept, and in consideration of which to relieve Clinton from his obligation to make the exchange of properties. Having thus fixed on the sum of five hundred dollars as an equivalent for the performance of this contract to exchange his propei’ty, as between himself and his co-contractor, the defendant cannot be allowed to deny that that sum of money is an equivalent, as between himself and the plaintiff, by whose aid he made the contract.
Whether this sum of money has been received or not does not appear. If it has not been received, means of enforcing payment are at hand. Both on legal and equitable grounds we think the plaintiff is entitled to recover. True, he has not effected an exchange of the defendant’s property. Clinton failed to perform the contract, electing, in lieu of performance, to pay, or be compelled to pay, the defendant five hundred dollars, agreed and pronounced by the defendant to be equivalent to performance. The plaintiff then, having rendered services for the defendant, which he agrees are an equivalent to procuring an exchange of his property, is fairly entitled to *227the same compensation as he would have been entitled to had the exchange been effected.
We advise the court below to render judgment for the plaintiff for the amount named.
In this opinion the other judges concurred.