The opinion of the court was delivered by
Smith, J.:The appellee solicited from the appellant, by letter, the agency to sell 640 acres of land owned by appellant in Butler county, and informed appellant that he had a buyer offering $12,500 therefor. In the reply the appellant informed appellee as follows:
“Just at present I do not care to sell it. Probably later on it will be on the market.”
Without further word from the appellee, ten days later the appellant wrote to appellee as follows:
“Was going to hold off for a while on that land, but if I can get $12,800 net to me. I’ll sell.”
He also gave a statement of the incumbrance on the land and the cash necessary to make the deal, assuming that the purchaser would assume the incumbrance.
Several letters followed from appellant to appellee in which appellant urged the selling of the land, and giving details as to the incumbrance, etc. On October 25, 1909, attorneys for appellee sent to appellant a copy of a contract which appellee had made with John C. Hoyt. The contract was dated October 22, *2961909. November 8, 1909, appellant wrote to appellee the following letter:
“I have your letters and telegrams saying you have sold the land. Have given same to Mr. J. T. Prin-gle, Burlingame, Ks., to look after, as you probably know. Want to get everything straightened up as early as possible. Yes, I should have gotten more, but wanted to sell it now so of course it’s alright. Glad that you sold it. I know you have been making quite an effort and you are entitled to something. Hurry things up.”
Afterwards Mr. Pringle, the attorney referred to in the above letter, wrote to Kramer and Benson, appel-lee’s attorneys, the following letter:
“I am sending the Hedstrom abstract. Please note carefully letter of Davis, Wellcome & Co. Make no changes on this abstract as it is to go back to the Insurance Co. in New York. If title is satisfactory prepare a deed for Mr. Hedstrom to sign and send it to me.”
November 80, 1909, the appellant wrote to the appel-lee making objections to some requests made as to the terms of'the deed, which had been sent to his attorneys to be executed by him, and in closing said:
‘T feel that under the circumstances, I would rather just declare this whole matter of selling my land off until I see or write you further. You need not further offer the land for sale until I see you or write you.”
On December 29, 1909, the appellant definitely informed appellee that he called the deal off. As shown by the contract and letters, the appellee had negotiated a sale of the land for $21 per acre, and the price at which he was to account to appellant was $20 per acre.
Thereafter the appellee commenced this action to recover $640 commission which by the terms of the letter he claims he was entitled to receive.
It is true that in the negotiations the purchaser, through the appellee, requested that the consideration *297for the deed be stated as “One ($1.00) and other valuable consideration and 00-100 Dollars,” and that the name of the grantee be left blank, but by the terms of the contract appellant had a right to deed the land to Mr. Hoyt or to any party whom Hoyt might designate. A deed stating the true consideration and conveying the land to James C. Hoyt would have met the conditions of the contract on appellant’s part. Neither the appellee nor the purchaser had at any time made the requests a condition for closing, the deal, and the requests were made after the execution of the contract by Hoyt. The contract was approved by appellant in his letter of November 9, more than two weeks after it had been executed by Hoyt and forwarded to him. In this letter appellant urged the qlosing of the transaction as early as possible.
.By the- contract the appellant was advised that the purchaser had deposited $350 in a bank at El Dorado to secure the performance- of the contract on his part, and there is evidence that this was the fact.
Exceptions are taken to the overruling of appellant’s objection to the evidence of Hoyt, that he had made arrangements to raise the money to comply with the contract; also that the court erred in overruling the demurrer to appellee’s evidence, in rendering judgment for appellee, and in overruling the motion for new trial.- It is urged that, as Hoyt admitted that he did not have sufficient money to comply with his contract, the appellant was not, by reason thereof, bound to forward his deed. The objections are untenable. Hoyt had the amount of money deposited in the bank which was required by the contract to protect appellant from any damages preliminary to the production of the deed and abstract, and also had assurance of procuring the additional sum necessary to complete the purchase. Moreover, the supposed uncertainty of Hoyt’s ability to comply with his contract was not the ground of appellant’s refusal to complete the trans*298action. There was ample evidence to support the claim of the appellee and to justify the judgment.
While a deed was requested which did not in every respect conform to the contract which had been approved by the appellant, the appellant was not obliged to comply with such request, nor, on the other hand, was he justified in repudiating the whole transaction because of such request. If he was not willing to allow the request, it was his duty to tender performance in accordance with the contract. This he failed to do.
At the beginning of the action the appellee had caused an attachment to be levied upon the appellant’s land, and in rendering the judgment the court ordered the sale of the land to satisfy the judgment. The abstract of appellant does not indicate that any effort was made to dissolve the attachment before the trial, and therefore if the judgment was proper the order of sale, conditioned on the nonpayment of the judgment, followed as a matter of course.
There was evidence to sustain a finding that' the appellee secured a purchaser who was able and willing to buy and pay for the land in accordance with the contract, and such finding is implied in the decision of the court in favor of the appellee.
The judgment is affirmed.