I dissent. The respondents herein instituted this action in the superior court of Fresno County against Charles H. Ramm, deceased, to recover commissions in the sum of $3,250 alleged to have been earned by them as *Page 371 real estate brokers. Trial was had before the court without a jury and judgment was entered in favor of said respondents as prayed for.
It appears that on January 5, 1920, the appellant's intestate authorized the respondents in writing to sell a tract of sixty acres of land situate in Tulare County, with the personal property thereon, for the sum of $120,000. Said written authorization provided that $35,000 of said purchase price was to be paid by the purchaser in cash and the remaining $85,000 was to be liquidated at the rate of $3,500 per annum with interest at six per cent. The commissions to be received by the respondents in the event a sale was consummated were also provided for in the authorization of sale.
On this appeal it is contended by the appellant, among other things, that the respondents failed to produce a purchaser or purchasers "ready, able and willing" to buy the property on the terms fixed by the owner. The respondents, on the other hand, urge that the purchasers procured by them were "ready, able and willing" to purchase the property on the terms specified but that the appellant's intestate refused to convey to said purchasers.
The rule is that to entitle a broker to commissions under a contract or written authorization of the character of that here involved and where, as here, no sale has been actually consummated, it is incumbent on him to prove that he found a purchaser or purchasers not only ready and willing but alsoable to buy the property on the terms prescribed by the owner. (Merzoian v. Kludjian, 183 Cal. 422 [191 P. 673];Mattingly v. Pennie, 105 Cal. 514 [45 Am. St. Rep. 87, 39 P. 200]; Tashjian v. Krikorian, 55 Cal.App. 160 [202 P. 956].) It follows, therefore, that the respondents' right of recovery is dependent upon their having procured a purchaserable to buy the property on the terms fixed by the owner.
All of the evidence touching upon the financial ability of the purchasers found by the respondents was given by Fred W. Moore, who testified that he and his brother, H.H. Moore, had signed a written offer wherein and whereby they had agreed to purchase the tract of land then owned by appellant's intestate for the sum of $120,000, of which amount *Page 372 $35,000 was to be paid in cash; that he had sufficient money in the bank against which a check for $1,000 given by him to the respondents as a deposit might be drawn; that he "was able to buy it and go through with all my obligations"; that he and his brother were "buying it together"; that they were able to pay for the property; that he, the witness, had "considerable" property. On cross-examination the witness testified that he and his brother were "able to raise" the $34,000 required to complete the initial cash payment; that they "had considerable of it in the bank"; that he had about $15,000 in the bank but that he did not know "what my brother had but we were able to take care of the deal"; that he would not be required to raise the $34,000 necessary to complete the initial cash payment as he "knew my brother would take care of half of it, his half of it"; that he did not intend or expect "to take care of more than half"; that they had "everything arranged to take care of the deal"; that he did not "remember" just how he was to raise the $2,500 needed to complete his half of the initial cash payment; that he was going to borrow said amount from "somebody" and give his note therefor; that he did not "remember just how he was figuring on raising it now."
The cases passing upon what constitutes ability to pay on the part of a proposed purchaser involve such a variety of circumstances that it is difficult to deduce any fixed rule from them. It is my opinion, however, that the evidence set forth in narrative form above is insufficient to support the findings and judgment in favor of respondents. In other words, the respondents have failed to satisfy the burden resting upon them of proving that they had produced a purchaser or purchasers having theability to buy the property upon the terms fixed by the owner.
The evidence clearly establishes that the witness, Fred W. Moore, intended and expected only to furnish one-half of the purchase price of $120,000 and but one-half of the initial cash payment of $35,000. Assuming, without deciding, that the evidence sufficiently shows that said witness was financially able to care for and pay his one-half of the purchase price and initial cash payment, there still remains a hiatus in the chain of proof, for there is an utter lack of *Page 373 evidence tending to show or establish that the witness' brother, H.H. Moore, was financially able to care for and discharge his one-half of the obligation in the event a sale was consummated.
The law will not presume the existence of the purchaser's financial ability; the burden is upon the broker to establish that fact. It is declared in Merzoian v. Kludjian, supra, that "it was a part of plaintiff's case in chief to show that the purchaser was ready, able and willing to make the purchase, and this could be done by proof either that he had funds in hand, in whole or in part, or that he commanded resources upon which he could obtain the requisite credit." (Italics added.) The statement of the witness, Fred W. Moore, that he and his brother "were able to take care of the deal" was but the expression of an opinion on the part of said witness, and is too indefinite and conjectural to satisfy the burden resting upon the respondents or to establish the ability of H.H. Moore to proceed with the consummation of the sale so far as he personally was concerned. As already indicated, there is an absence of evidence tending to show the financial ability of said H.H. Moore, for the witness, Fred W. Moore, stated he did not know the nature or extent of his brother's assets. The evidence adduced is also insufficient to establish the ability of the witness, Fred W. Moore, to care for and discharge the entire financial burden in the event a sale was consummated. His testimony merely reveals that he had approximately $15,000 on deposit in a bank and "considerable" property. As declared in Merzoian v. Kludjian, supra, "he did not state whether he could have borrowed money on that property" nor is his testimony "at all certain as to his available assets." The witness, in fact, testified that he did not "remember" how and where he was to secure the nominal sum of $2,500 needed to complete and discharge his one-half of the initial cash payment. This being so, it may not reasonably be inferred that he was in a position to pay the entire initial cash payment or to discharge the full purchase price in the event a sale was consummated. Moreover, his testimony to the effect that he would have borrowed said $2,500 from "somebody" lends no support to a supposition that he might have borrowed sufficient to discharge the entire initial payment in the *Page 374 event of a sale, for the authorities in this state uniformly hold that a statement of the proposed purchaser evincing a confidence in his ability to borrow the money "from someone, without showing that there was anyone legally bound to loan him this money, is insufficient to establish his financial ability to make the purchase." (Tashjian v. Kirkorian, supra.)
The evidence in the instant case when considered in a light most favorable to the respondents is insufficient to establish that the purchasers produced by them were "ready, able and willing" to complete the sale.
Rehearing denied.
Waste, C.J., dissented.