Rice-Wray v. Palma

Clark, J. (after stating the facts). The trial judge was clearly in error. The agreement between defendant and the American State Bank was an agree [328] ment to sell on the one hand and to purchase on the other. It was an agreement for a present sale. It was carried out by transferring to the purchaser all the business and assets of defendant, and the execution of the lease. Title then passed to the bank which was subject to be defeated by no contingency. Plaintiff had procured for defendant a purchaser ready, willing and able to pay the sum of $100,000 for the business. True the payments were to be made out of the profits and were, therefore, to be deferred, but that was satisfactory to defendant and was. in accordance with the agreement between him and the American State Bank. By deferring the time, and himself fixing the manner of payment, he could not defeat the plaintiff’s present right to his commission. The case is controlled by Fuday v. Gill, 195 Mich. 613, in which this court said: “A broker becomes entitled to his commission whenever he procures for his principal a party with whom he is satisfied and who actually contracts for the purchase of the property at a price acceptable to the owner (Hubbard v. Leiter, 145 Mich. 387; McDonald v. Ortman, 88 Mich. 645; Whitaker v. Engle, 111 Mich. 205; Keys v. Johnson, 68 Pa. 42); and he is not deprived of the right to his commission by the fact that the purchaser fails to carry out his contract (19 Cyc. p. 270.); nor is he bound to wait until all deferred payments were paid and all agreements on the part of the purchaser complied with (Morgan v. Keller, 194 Mo. 663, 680 [92 S. W. 75]), and it is necessary to show an express agreement to defer payment of his commission to defeat his right of recovery after performance (Hodgkins v. Mead, 8 N. Y. Supp. 854, affirmed without opinion, 130 N. Y. 676 [29 N. E. 1035]).” The judgment will be reversed, with a new trial. Plaintiff will recover costs of this court. Steere, C. J., and Moore, Wiest, Stone, Bird, and Sharpe, JJ., concurred. Fellows, J., did not sit.