This was an action to recover $1,160.75 as broker’s commissions for negotiating a sale of real property. The trial court gave judgment for the plaintiffs, and the defendant appeals.
The evidence is not brought up, and the findings must therefore be taken to correctly set forth the facts of the case, which are as follows:—
The defendant authorized one Dunn, the assignor of the plaintiffs, to sell a tract of land then possessed and claimed by defendant, at a price not less than $23,125, and promised in writing that he “ should receive from defendant, as commissions for making such sale, the sum of five per cent upon the full amount for which said property should be sold, and that, upon deposit of ten per cent of the purchase.price by the purchasers, the defendant would furnish to him a complete and perfect abstract of title thereto.”
Dunn procured purchasers who xvere willing to take the property at $23,215, and who deposited with him ten per cent of this amount, taking a written receipt containing the following clause: “ Title to prove good or no sale, and this deposit to be returned.” The defendant
Upon these facts we think that the judgment in favor of the plaintiffs was clearly right. The contract of the parties was not that there should be an actual transfer of the title, or a valid contract for such transfer. It was merely that the broker should find a purchaser who was whiling to buy upon certain terms. (Duffy v. Hobson, 40 Cal. 244; 6 Am. Rep. 617; Armstrong v. Lowe, 76 Cal. 616.) This being the contract on the broker’s part, it was performed when he produced purchasers who were willing to buy upon such terms. (Phelan v. Gardner, 43 Cal. 311.) It makes no difference -whether the defendant had a good title or not. If he had not a good title, and the transaction failed in consequence, that was not the broker’s fault, and is no reason why he should lose his commission. (Middleton v. Findla, 25 Cal. 76.) If he had a good title, but took measures to have it rejected by the purchasers’ attorney .for the purpose of defeating the
It is immaterial that Dunn returned the deposit to the purchasers without the knowledge or consent of the defendant. The condition upon which he held it was that it should be returned if the title should not “ prove good.” If the title was not in fact good, it was the duty of the depositary to make the return. If the title was good, but the defendant, for the purpose of defeating the sale, induced the purchasers to believe that it was bad, and to act upon such belief, he had no more right to have the deposit retained than he had to deprive the broker of his commission. It makes no difference upon whom the demand for a return of the deposit was made, or whether it was returned or not. The complaint was drawn with unusual precision, and the demurrer was properly overruled.
We therefore advise that the judgment be affirmed.
Gibson, C., and Vancltef, C., concurred.
For the reasons given in the foregoing opinion, the judgment is affirmed.