Epitomized Opinion
The Kimball-Childs Realty Co. sued McSweeney to recover a real estate commission claimed to be due under a listing contract. The terms of sale specified in this contract was $6,000 cash and the balance of $6,000 secured by the mortgage on the property. The real estate company immediately prepared an agreement whereby McSweeney was to sell to Duck-worth for the price' named in the listing contract, but instead of $6,000 the contract provided for a cash payment of $40 and a payment of $5960 in five days. The agreement was signed by both the seller and purchaser. As the purchaser failed to comply, another agreement was entered into extending the time for four days for the payment of the remainder of the $6,000. As the purchaser was financially unable to go ahead with the sale the real estate company sued the seller for its commission. The jury found for defendant, and error proceedings were prosecuted to the Court of Appeals upon the ground that the court’s charge was erroneous. In sustaining the lower court it was held:
1. Where the parties are strangers and there are no direct negotiations between them, the real estate broker’s contract to find a purchaser implies a purchaser able to perform on the terms stipulated, and a broker is not entitled to his commission unless he can show that the purchaser was financially able to perform.
2. Where the seller deals- with the purchaser directly, after having determined the purchaser’s ability to perform, there is reason in saying that the broker has earned his commission, but such a situation does not exist in this case.