Thompson v. Dorman

SWING, J. The action was originally brought before James S. Myers justice of the peace, Cincinnati township, Hamilton county, for a commission for the sale of real estate, the amount being for $80, 2 per cent, on $4,000, the amount of the alleged sale made by the agent. In the court of common pleas the court directed the jury to return a verdict' for the defendant, and error is prosecuted in this court. Plaintiff in his petition alleged: “Plaintiff further says that on or about February 27, 1911, the defendant requested the plaintiff as such agent, to endeavor to procure for her a purchaser of said property. The plaintiff then agreed to comply with said request, and on or about March 21, did procure for said defendant a purchaser for said real estate, who thereupon entered into a written contract with said defendant to purchase said real estate for $4,000 upon terms agreed upon by and between said purchaser and said defendant. That-without fault upon plaintiff’s part said purchaser failed to carry out his said contract of purchase with said defendant, and said defendant because thereof refused and still refuses to pay said plaintiff his commission therefor. ’ ’ The law in regard to what is necessary for a real estate broker to do in order to earn his commission is thus stated in Fairchild v. Cunningham, 84 Minn., 521 [88 N. W. 15] : “A real estate broker is not entitled to a commission for-the sale of land unless he procures a purchaser who is able, ready and willing to comply and purchase on terms named by, or which are, in the absence of an express agreement as to terms, satisfactory and acceptable to the owner.” We think this is the well .settled law. In Flinn v. Jordel, 12 Ia. 457 [100 N. W. 326] the court say: [96] “The contract furnished by a broker signed by the purchaser, furnishes no evidence of his ability to perform its conditions.” There is no allegation in the petition that said purchaser was able to purchase on the terms set forth in the contract, and we think with the lack of such allegation the petition was demurrable. The evidence offered at the trial fails to cure this defect in the petition because it does not show that the alleged purchaser was ready, willing and able to purchase, and because of the failure to make this showing, we think the court was right in directing the jury to return the verdict for the defendant. We find, no errors in the judgment of the court of common pleas, and the same will therefore be affirmed. Jones (E. H.) and Jones (O. B.), JJ., concur.