Lead Opinion
delivered the opinion of the court.
This is a certified question from the Court of Civil Appeals of the Second District, and in order to save copying a long statement we undertake to state the point in thе case.
The appellants were employed as real estate brоkers to make sale of certain land belonging to appellee, and having effected, as they claimed, a sale to one Clark, brought suit for their commission. In the contract for the conveyance of the land, after specifying the price, consideration, etc., the following stipulation was inserted: “And it is further mutually аgreed in case purchaser fails to comply with the terms hereof relating to the payment and securing of the pur *569 chase price as above mentiоned and by the time herein designated, purchaser shall forfeit the amount paid hеreon to seller and the same shall be paid to seller by said trustees and accepted by said seller as and for liquidated damages for such injury and damage аs the seller may suffer by reason of the nonperformance of this contract on the part of the purchaser.”
The question certified for our determinatiоn is, whether upon this contract a sale was effected so as to entitle the appellants to their commission.
We have numerous decisions holding that, although there is a stipulation in the contract of this character, payment of a fixed sum of money as liquidated damages does not affect the contract for sale of the land but that the seller can enforce specific perfоrmance. (Hemming v. Zimmerschitte,
It seems to us that these decisions are decisive оf the case. If the vendor of the land can enforce a specific рerformance of the contract to pay for it, then the broker has effected a sale, valid in law, and is entitled to his compensation. We have also examined the authorities cited in the certificate upon the same prоposition and find it is amply supported by them. (Lyman v. Gedney,
We therefore answer the question submitted in the affirmative аnd say that the contract is such that appellee is entitled to have it spеcifically enforced, and that therefore the appellants are entitled to their commission for making the sale.
Opinion filed' December 3, 1908.
Addendum
ON REHEARING.
delivered the opinion of the court.
Upon consideration of the motiоn for a rehearing in this case we are of opinion that we erred in disposing originally of the question.
Referring to the stipulation quoted at the end of the statement of the case it is to be noted that it provides that the $1,000 put up as a forfeit “shall be paid to the seller by said trustees and accepted by said seller as liquidаted damages for such injury and damage as the seller may suffer by reason of the nоnperformance of this contract on part of the purchaser.” Now, it оccurs to us that if nothing had been said as to the acceptance of thе $1,000 by the seller, our original opinion would have been correct. But if the seller is bоund to accept the sum for such damages as may be suffered by reason of. the nonperformance of the contract on part of the purchaser, can he sue the proposed purchaser for specific performance of the contract? The contract evidently was that the proposed purchaser should have until á future day to pay the price and acсept a conveyance, yet should he *570 decline for any reason to рay the price and to accept the land, he may pay the liquidated dаmages and be absolved from further suit.
Moss & Raley entered into a contract with Clark to sell him certain lands and stipulated that in case he failed to buy, he should forfeit $1,000 which had been put up to enforce the bargain. He chose to forfeit the $1,000 which absolved him from further obligation.
Before Moss & Raley were entitled to their commission they should have procured a purchaser who was willing to enter into a contract to purchase the land absolutely.
For this reason we answer the question in the negative.
Opinion filed June 23, 1909.