Roberts v. Kimmons

Arnobd, J., delivered the opinion of the Court. The right result was reached in this case, and there is no error in the record for which the judgment should be reversed. The sale negotiated by appellee failed not because of the inability of the purchaser to comply with its terms, but on account of a defect in the title to the land. We are not fully informed by the record of the extent of the alleged defect in the title, but enough appears to show that'the objection made to it by the purchaser was not fanciful or captious. The condition in the written contract in regard to the title being made clear and satisfactory to the purchaser, before the sale was to be concluded, was nothing more than the law and good faith implied, to wit, that the purchaser should get a title free from valid objections. Folliard v. Wallace, 2 Johnston, 395; Middleton v. Findla, 25 Cal., 76. The purchaser would have been entitled to this without any such stipulation in the contract, unless it had been shown that he agreed to take the risk of the title. The right of appellee to commissions did not depend upon •the contingency of the title being good. He assumed no responsibility in regard to the title. When one representing that he owns and has good title to real estate, employs an agent to sell it, he cannot, in the absence of an agreement to that effect, deny to the agent compensation for his services in making a .sale, which is afterwards defeated because the title proved de [335] fective. Middleton v. Findla, 25 Cal., 76; Knapp v. Wallace, 41 N. Y., 477 ; Doty v. Miller, 43 Barb., 529 ; Holly v. Gosling, 3 E. D. Smith, 262; Hamlin v. Schulte, 34 Minn., 534; Kock v. Emmerling, 22 How., 69; Sibbald v. Bethlehem Iron Co., 83 N. Y., 378. Affirmed.