Appeal from an order directing a verdict for defendants. Plaintiff in his complaint alleges that the defendants were his special agents for the purpose of securing for him a fee-simple title to a half section of land; that defendants were not the owners thereof; that he placed in defendants' custody and control as his agents the sum of $i,ooo, to. be paid to the owners of said real estate, as partial payment of the purchase price; that the defendants rescinded and nullified the agreement of agency with the plaintiff under which they had agreed to deliver the money so placed in their control, and returned to' plaintiff the sum of $6oo thereof, at which time they represented that they had paid to the owners of said real estate the balance of $400; that defendants did not pay to. the owners of said real estate the sum of $400, but are now in possession thereof; that plaintiff has demanded the return of said sum. The complaint alleges, in further detail, that prior to- said transaction, plaintiff had been desirous of obtaining the title to said premises; that
“I have got the owners tied down all right for you. They will stand pat. This is all that I can do for you today.”
■Gave Ward the checks the morning of February 27th, and signed the contracts between himself and Ward and Brawner the evening of the same day. Next saw Ward March 10, 1911. Showed him a letter received from Mr. Coon, dated Februai y 28th, wherein plaintiff was advised that 'Calkin, the purchaser, had backed out on the sale. Asked Ward to go to the owners and see what he could do about getting the money back. Ward read the letter and said he would see what could: be done — he did not know. Left witness’ office and returned in about half an hour. 'Said he had got back $600 and could not get back any more. That the owners of the land would stand pat, and plaintiff could g'o down and close up the deal if he wanted to, but this was all he could get ba'clc. He presented the $750 check and 'said:
“You give me a check for $150 and that will repay me for the money I put down for you.”
'Witness gave him a check for $150 and received back the $750 check. Ward asked for the land contracts and the witness delivered them back to him. Maud Taft, stenographer in •plaintiff’s office, testified to substantially the same facts. Plaintiff’s witness- Plumber testified: That he was authorized to represent Clara Hug-hey, owner of one of the quarter sections. That Ward inquired of him if the .property was for sale; he told him it was, at $45 per acre net to Miss Hughey. March 10th Ward called again, and stated that the deal 'had fallen through, and witness returned him the check -for $750, all the money that was paid. Did not promise to pay Ward anything if the property was
The question presented is whether the plaintiff was entitled to a verdict upon these facts. Briefly stated, the evidence shows that plaintiff had a client in Nebraska who wished to purchase the land in question; that plaintiff desired to procure contracts from the owners of the land, that he might sell it to the proposed purchaser at a profit, and to that end sought the assistance of defendants; that defendants undertook to procure title for plaintiff’s use, and were able to do so ; that relying upon their proposition to bind themselves to procure such title, plaintiff entered into a written contract with defendants, whereby they obligated themselves to procure and deliver to. plaintiff such title; that defendants demanded a cash payment to themselves of $1,000 on account of the purchase price, to which plaintiff assented ; that shortly thereafter appellant was advised that his Nebraska purchaser would not take the land, and thereupon asked defendants to return to him the money paid them; that they returned $600; advising him that the owners of the land would not return the remaining $400, and at their request plaintiff surrendered the contracts.
It appears from the record that the defendants were ready, able, and willing to procure for and deliver to plaintiff title to the land, upon the terms and conditions specified in the contracts, had plaintiff so desired. Defendants held plaintiff’s contracts to take the land and pay the purchase price, and so long as they were ready, able, and willing to fulfill that contract, it was entirely immaterial to plaintiff what defendants had done with the money placed in their hands. Their obligation was complete, and plaintiff had a right to enforce it, had he so desired. Plaintiff could not have recovered back the money paid them. Therefore when defendants surrendered and abandoned their right to enforce the contracts against plaintiff, it could be done
The judgment and order of the trial court must therefore be affirmed.