Arthur D. Jones & Co. v. Eilenfeldt

The opinion of the court was delivered by Fullerton, J. — The appellant, a corporation, brought this action against the respondent to recover the sum of $280, alleged to be due it as commissions for the sale of certain real property. On the trial of the cause in the court, below, after a jury had been impaneled and sworn, the court sustained an objection to the introduction of any testimony on the part of the appellant, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The appellant ^declined to plead [688] further, whereupon the court discharged the jury, and entered a judgment in favor of the respondent for coáts. The sole question presented for our consideration is the sufficiency of the complaint. This is full, and sets forth the entire transaction out of which the liability is claimed to arise. It appears therefrom that in July, 1897, the respondent listed with the appellant certain real property, to be sold for a fixed sum in cash; agreeing to pay in consideration of a sale of the property five per centum of the price asked, as commission for such sale. In June, 1899, the appellant procured a person who professed to be de^ sirous of purchasing the property, whom it introduced to the respondent, whereupon the respondent and the would-be purchaser executed a writing in the form of a contract of sale, by the terms of which the purchaser agreed to purchase the property at a stun agreed upon, payable in installments, the first of which was to be paid in cash upon the delivery of the contract, and the balance at fixed periods. The contract was not delivered, nor was it immediately to go into effect, but was left with the appellant to be delivered and go into effect upon the payment of the first installment of the purchase price. This latter agreement was also expressed in writing, and contained a condition to the effect that if the first installment was not paid on or before July 3, 1899, the contract of sale was to be returned to the respondent. At the time of the execution of this agreement the purchaser gave to the appellant a draft on himself, payable eleven days after date, at Wadena, Minnesota. Subsequently, and before July 3d, he demanded a return of the draft, and asked that the contract be canceled. The draft was not paid before July 3d, or at all, and on July 7th the respondent notified the appellant that he would not attempt to enforce the contract; [689] informing him at the same timei that he had found another purchaser for the property. To entitle a real estate agent to recover from a land owner a commission for the sale of his land, the agent must find a purchaser able and willing to purchase the property upon the terms under which he is authorized to make a sale, or upon terms satisfactory to' the'owner, and one who> is ready and willing to enter into .a valid contract of purchase. It is not sufficient for the agent to introduce a person who is merely willing to take an option upon the property. Dwyer v. Raborn, 6 Wash. 213 (33 Pac. 350). Here the writings relied upon to constitute the contract of sale do not have that effect. At most, they gave to the person named therein as purchaser a mere option to purchase, which he could refuse without incurring any liability to. the land owner whatsoever. There was therefore no1 such sale as would warrant a recovery of commissions on the part of tire appellant. The judgment is affirmed. Peavis, C. J\, and Hadley, Anders, White, Mount, and Dunbar, JJ., concur.