We adopt appellant's statement of the nature and result of the suit, which shows that:
"This is a suit by appellees for the recovery of commissions, in which appellees allege, in substance, that they, as agents of appellant, procured the execution of a written contract between appellant, their principal, and T. E. Prunty, for the exchange of certain real estate, and that by so doing they had earned their commissions. Appellant answered admitting the execution of said contract for the exchange of properties with T. E. Prunty, but alleged further that said contract was only a preliminary step looking to the exchange of said properties, and that said contract provided that each party should furnish the other, within ten days, an abstract showing a good and merchantable title to the property proposed to be exchanged, and alleged further that the abstract furnished by Prunty not only failed to show title in Prunty to the 134.6 acres, which he contracted to convey to appellant in exchange for his section, but showed affirmatively that T. E. Prunty did not own said land, and that said abstract furnished by Prunty purported to show title to only 122.98 acres, and that the title to said 122.98 acres, as shown by said abstract, was defective in many particulars, and was not a good title, and that said defects were never cured, for which reason said exchange was never carried out."
Appellees presented several special exceptions to all the allegations in appellant's answer to the effect that Prunty did not own the land which he contracted to convey to appellant, and that the title to such land as he did own was not a good and merchantable title, and that by reason thereof the exchange was never made, etc., upon the ground that said allegations were immaterial and irrelevant. The court sustained said exceptions, to which action of the court the defendant excepted. Appellees introduced the contract for the exchange of properties and some preliminary evidence, whereupon the court instructed the jury to return a verdict for appellees, and judgment was entered in accordance therewith, from which appellant prosecutes this appeal, urging that the court erred in sustaining appellees' exception to the paragraph of his answer asserting that Prunty did not have a good title to the farm in question.
It is true that appellant entered into a contract with Prunty by which he agreed to sell and convey to him a section of land in Armstrong county, and that Prunty, in consideration thereof, agreed to purchase the above-described section, and in payment therefor agreed to convey to appellant his said farm in McLennan county, consisting of 134.6 acres, but said contract contains these further stipulations, as follows:
"It is further mutually agreed that each party hereto will furnish an abstract brought down to date to the other party, showing a good and merchantable title to the respective properties involved in this contract; this deal to be closed within twenty days from date. Provided, that should either party find valid objections to the title to the property being conveyed to him, then the party conveying such title shall have ten days within which to remove such objections."
Thereafter a supplemental agreement was made whereby the parties extended the time within which to close said deal.
It is elementary that the broker, in order to comply with his contract and earn his commission, must procure a purchaser who is ready, able, and willing to carry out the contract, and a failure to do so defeats his right of recovery; but appellees insist that having brought the parties together, who made a contract binding each other to an exchange of lands, they were entitled to recover their commissions, notwithstanding the trade was not consummated owing to the defective condition of Prunty's title, citing in support of their contention Seidel v. Walker,173 S.W. 1170; Watkins v. Thetford, 43 Tex. Civ. App. 536, 96 S.W. 72; Leuschner v. Patrick, 103 S.W. 664; Scully v. Williamson, 26 Okla. 19,108 P. 395, 27 L.R.A. (N.S.) 1000, Ann.Cas. 1912A, 1265; Moore v. Irvin, 89 Ark. 289, 116 S.W. 662, 20 L.R.A. (N.S.) 1168,131 Am. St. Rep. 97; Goldberry v. Thomas, 178 Mo. App. 334, 165 S.W. 1179; Lombard v. Sills, 170 Mo. App. 555, 157 S.W. 93; Roche v. Smith, 176 Mass. 595, 58 N.E. 152,51 L.R.A. 510, 79 Am. St. Rep. 345; Pinkerton v. Hudson,87 Ark. 506, 113 S.W. 35; note to 11 Ann.Cas. 786; Kalley v. Baker, *Page 992 132 N.Y. 1, 29 N.E. 1091, 28 Am. St. Rep. 542.
We understand these authorities to apply to cases in which an unconditional contract binding the parties to convey is entered into. Here, the contract was contingent, dependent entirely upon the ability of each of the parties to furnish an abstract showing a good and merchantable title to their respective properties, and a failure to do so would defeat the contract. So, in our opinion, the court erred in sustaining the exception holding that the defense of failure of title was immaterial. Besides this, appellant contends that he was not liable for commissions, for the reason that the contract could not be specifically enforced on account of failure of title on the part of Prunty, citing in support of this view Blair v. Lowrey, 164 S.W. 14; Hahl Co. v. West, 129 S.W. 878; Clifton v. Charles, 53 Tex. Civ. App. 448,116 S.W. 122; Greusel v. Dean, 98 Iowa 405, 67 N.W. 275. See, also, Mass. Raley v. Wren, 102 Tex. 567, 113 S.W. 739, 120 S.W. 847.
In Blair v. Lowrey, supra, where a similar defense to the one here invoked was made, it was held that the broker was not entitled to recover on the ground that the contract could not be specifically enforced. We think the instant case is distinguishable from the line of cases cited by appellees, of which Roche v. Smith, 176 Mass. 595, 58 N.E. 152,51 L.R.A. 510, 79 Am. St. Rep. 345, is perhaps the clearest enunciation of the doctrine contended for by appellees, for the reason that the parties in this case entered into a conditional contract in which it was contemplated that neither should be bound in the event that the other did not comply with that provision of the contract wherein he bound himself to furnish a good and merchantable title. Such a provision was equivalent to the insertion of a stipulation to the effect that this contract is not enforceable in the event either party is unable to furnish a good title to the land he binds himself to convey. Appellees therefore did not bring themselves within the rule announced in Roche v. Smith, supra, and the other cases relied upon by them.
For the reasons indicated, the judgment should be reversed, and the cause remanded, and it is so ordered.
Reversed and remanded.