313 Ky. 733 | Ky. Ct. App. | 1950
Affirming.
In this action for real estate agent’s commission, appellee sought and obtained judgment in the sum of $615 against appellants. Appellants, for purpose of sale, bad listed with appellee certain real property situated in Lexington. Appellee procured, as a prospective purchaser a Mr. Neubauer who apparently did not have all of the purchase price at hand. Whereupon, an offer of purchase, or sort of optional contract, was entered into by and between Mr. Neubauer and appellants. The pertinent part of this agreement is:
“As evidence of good faith to bind this contract the sum of $1,000.00 is deposited with Iola S. Hansen to be applied on the purchase price, upon passing of deed, or refunded, should title prove not merchantable, or acceptable, or if this offer is not accepted, or if a satisfactory loan cannot be secured within ten days from this date.
*734 “$14,500.00 will be paid upon, passing- of deed provided tbe satisfactory loan can be secured as aforesaid within ten days from this date.
“A Deed of General Warranty, with the usual covenants, and restrictions, if any, shall be executed and presented to us not later than May 15th, 1948, * *
The sale was never consummated. As reason for such failure, appellants say that within the 10 day period, they never heard from either the prospective purchaser or appellee, nor were they ever notified that the loan had been obtained or that there was readiness, willingness, or ability to purchase. Whereupon, they took the property off the market. Appellee says the reason was the failure and refusal of appellants to carry through with this contract and execute the deed. Because of this failure and refusal so to do, appellee insists that she did all that was required of her in the performance of her contract, under the listing with the appellants, and that she is, therefore, entitled to her commission. These antagonistic contentions resulted in the action and judgment above.
For reversal, appellants contend that they were entitled to a peremptory instruction since it was incumbent upon appellee to show, in the absence of special agreement otherwise, that she either (1) had obtained a written enforcible agreement between the seller and the purchaser, or (2) had produced a purchaser who was ready, willing, and able to purchase the property in accordance with the terms of the listing. It is insisted that the contract as above set out was not enforcible; that it was merely a contract of purchase; that certain conditions therein, chief among which was the purchaser’s right to have 10 days within which to ascertain his ability to secure a loan,' rendered the contract unenforcible; and that because of this feature, it was impossible to force the purchaser to secure a loan. Consequently, the contract would be unenforcible.
In the next place it is argued that even though the contract, under its provisions, gave to the purchaser the opportunity of ascertaining within the 10 days if he could obtain a loan, actually appellee failed to show that she had produced a purchaser ready, willing, and able to purchase the property. Herein we find the crux
The judgment is affirmed.