120 P. 615 | Okla. | 1912
On March 15, 1909, G. W. Webster and E. V. Hartman, partners, doing business as Webster Hartman, defendants in error, sued J. M. Crutchfield, plaintiff in error, before a justice of the peace in and for Broken Arrow, Tulsa county, for $160 commission alleged to have been earned on a sale of 160 acres of land listed with them by defendant, to be sold for $40 per acre. After answer to their bill of particulars, there was trial and judgment, and an appeal to the county court. There a trial anew resulted in judgment for plaintiffs for the sum sued, and defendant brings the case here.
At the close of plaintiffs' testimony, defendant demurred to the evidence, which was overruled, after which the cause proceeded, and both sides introduced additional evidence pro and con. When this is the state of the record, and we are asked, as here, to say whether the court erred in refusing to sustain the demurrer to plaintiffs' evidence, the governing rule is as we have laid down in McInteer et al. v. Gillespie,infra.
The demurrer should have been sustained for the reason the evidence discloses that plaintiffs neither sold the land nor sent defendant a buyer as they had contracted to do.
"The general rule is that, in order for a real estate broker to be entitled to compensation or commission, he must have performed his full duty towards his employer, and have accomplished all he undertook to do." (23 Am. Eng. Enc. Law, 914.)
In this instance, to entitle them to recover, the burden of proof was upon plaintiffs to prove that they had produced a person who was ready, willing, and financially able to make a purchase of the property at the price and upon the terms fixed by defendant. Birch v. McNaught,
Reversed and remanded.
All the Justices concur. *145