OPINION OP THE COURT.
MECHEM, D. J. — 1 2 Appellant insists that by his answer lie raised the following issues of fact: (1) Whether or not appellant accepted the property of Shackleton; (2) Whether or not appellant accepted Shackleton as a proper party with whom to make an exchange other than upon the conditions in the contract or stimulations Exhibit “B •” (3) Whether or not appellee had done all it was required to do in order to earn its commission; (4) Whether or not the contract, or stipulations Exhibit “B” between appellant and Shackleton, was intended to be a stipulation by which an exchange of property was to be effected or whether it was intended to be a valid, binding and enforceable contract; (5) Whether or not the contracting party, Shackleton, failed to perform the contract, or stipulation, Exhibit ‘‘B,” and if that was the reason why the exchange was never effected between appellant and said Shackleton. Argument is not required to demonstrate that the issues raised on these points were issues of law and not of fact. The question whether ShacHeton’s failure to comply with his agreement, was a good defense will be discussed hereafter, but the allegation of that fact presented no issue because admitted by the motion for judgment. As the pleadings stood, the case was ripe for judgment on the issues of law involved and the motion for judgment was properly entertained.
3 It is contended by appellant that the appellee does not plead a performance of the terms of its employment, because the exchange of properties was not consummated The law is well settled, that under an employment to sell or exchange the property of his principal, a broker has fully performed his undertaking when he procures a customer, with whom the principal makes a valid contract of sale or exchange. Shepherd-Teague Co. v. Herman, 107 Pac. 622; Ward v. Cobb, 148 Mass. 518, 12 Am. St. 587; Wilson v. Mason, 158 Ill. 304, 42 N. E. 134, 136, 49 Am. St. 152; Odell v. Dozier, 30 S. E. 813; Scully v. Williamson, 26 Okla. 19, 108 Pac. 395; Ann. Cases 1912 A 1265; Kalley v. Baker, 132 N. Y. 1, 28 Am. St. 542.
4 Nor as claimed by counsel was it .necessary for appellee to aver that Shackleton was “in a position and able to convey a perfect title to the property which he proposed to exchange to defendant.” By entering into the contract of exchange the appellant accepted Shackleton as able, ready and willing to make the exchange. In Roche v. Smith, 176 Mass, 595, 58 N. E. 153, 79 Am. St. 345, the Court said:
5 “It was held in Knapp v. Wallace, 41 N. Y. 177, where.the broker was employed to find a person to convey land to be paid for in money, and in Kalley v. Baker, 133 N. Y. 1, 38 Am. St. 542, 29 N. E. 1901, where the broker was employed to find a person to convey land to be paid for by conveyance of other land,.that is to say, to effect an exchange, that where the principal makes a valid agreement with the customer produced by a broker, the broker has earned his commission, even if it turns out that the customer cannot make a good title and the land is not conveyed, providing the broker acted in good faith in the matter. In the opinion of a majority of the Court those-cases were rightly decided. The question is the same in the two cases; the only difference is that in one case payment is to be made in money, in the other, by a conveyance of other land. The ground on which this is set-tied is that by entering into a valid contract with the customer produced by the broker the principal accepts-the customer as able, ready and willing to buy land and pay for it.”
In Fox v. Ryan, 240 Ill. 391, 88 N. E. 974, the reason-for this doctrine is well stated:
“The vendor of property is not required to accept a purchaser without opportunity for investigation as to his ability to comply with the terms of the contract, but where he-does accept such purchaser, uninfluenced by fraud or misrepresentation, it is a determination by him of the purchaser’s ability to perform his contract, and, if the purchaser afterwards fails to perform it, the seller cannot defeat the broker’s commission on the ground that the purchaser was not able to buy the property.”
Appellant insists that the contract is not enforceable because of the provision in regard to the notes deposited by the parties in escrow “as evidence of good faith and as a forfeit” for non-performance. In his answer the appellant alleged that these notes were given for the purpose of indemnifying the party not in default in damages. The contract, however, speaks for itself, as its language is plain. It appears conclusively that the notes were given simply for the purpose of securing the performance of the contract. The word “forfeit” in its ordinary use in eases of contract is synonymous ^yith “mulct, fine or penalty.” State v. Baltimore & O. R. Co., (Md.) 12 Gill & J. 399, 38 Am. Dec. 319, and see other cases cited in Words & Phrases, vol. 3, p. 2893. In the case of Van Burén v. Digges, 52 U. S. (11 How.) 461, 467, the Court said:
6 “The second exception by the defendant states, that in addition to the evidence previously tendered by him he offered proof tending to show that the amount of ten per centum on the contract price stipulated'to be forfeited if the house was not entirely finished and ready for occupation, as therein provided, on the 25th of December, 1844, was intended by the parties as and for liquidated damages, that would result and fairly belong to the said defendant by reason of said failure to finish the said house on the 25'th of December, 1844; and that the Court refused to hear the evidence thus tendered. In the refusal of the Court to admit the evidence thus tendered we think they decided correctly. It would have been irregular in the Court to go out of the terms of the contract, and into the consideration of matters wholly extraneous, and with nothing upon the face of the writing pointing to such matters as proper or necessary to obtain its construction or meaning. The clause of the contract providing for the forfeiture of ten per centum on the amount of the contract price, upon a failure to complete the work on a given day, cannot properly be regarded as an agreement or settlement of liquidated damages. The term forfeiture imports a penalty,; it has no necessary or natural connection with the measure or degree of injury which may result from a breach of contract, or from an imperfect performance. It implies an absolute infliction, regardless of the nature and extent of the causes by which it is superinduced. Unless, therefore, it shall have been expressly adopted and declared by the parties to be a measure of injury or compensation, it is never taken as such by courts of justice, who leave it to be enforced where this can be done in its real character, viz., that of penalty.”
We do not decide that a provision for liquidated damages in a contract such as this renders it unenforceable, but that in this case the .provision considered is plainly in the nature of a penalty to secure the performance of the contract, which of itself is no bar to specific performance.
7 From the law announced on the question above discussed it follows that the further objections of the appellant, viz: that the complaint failed to state a cause of action because it is not alleged that Shackleton was able, ready and willing to complete the exchange on the terms of contract ‘T3,” or that he made any effort to complete the exchange or that the defendant refused to complete the exchange of properties, and that the Court erred in holding that by entering into the contract, the appellant accepted Shackleton as able, ready and willing to make the exchange, are not well taken.
8 9 Appellant insists that by his answer he raises as an issue of fact the question of whether the contracts “B” and “C” were mere stipulations of the terms of a proposed exchange and not intended by the parties to be enforceable contracts or to be enforced. Appellant does not plead any other contract which would vary the terms of contracts ‘‘B” and “C” and what the parties intended by those contracts was for the Court to decide by an inspection of the contracts unaided by proof aliunde.
There is no error disclosed by the record and the judgment is therefore affirmed.