This is a suit for $487.50, alleged to be due as commissions for the procurement of the exchange by appellant of certain real estate between appellees, J. L. Felder and Camp Felder, and G. Denton. The cause was triеd by jury, and a verdict instructed for appellees, upon which judgment was renderеd.
The evidence showed that no exchange of property took place between the parties, on account of defects in the titlе of Denton. The evidence is undisputable that the failure to make the exсhange was not on account of any defect in the title to appellees’ land, but on account of defects in the title of Denton. The contrаct, as testified to by appellant, was:
“That I was to find a buyer for his property, and if suitable to him, he was to pay me the commissions usually agreed to of 2½ per cent, for the exchange of his property, up to $6,000, and 5 per cеnt, on the balance.”
Appellant afterward procured a contract between appellees and Denton, by which each agreed tо furnish an abstract of title “conveying a good and merchantable title.” Dentоn failed to furnish an abstract showing “a good and merchantable” title, and the еxchange of property was never perfected. Appellant admitted that he was to receive—
“2½ per cent, if the property had beеn exchanged. Each party would have paid me 2½ per cent, on one-third of the value of the property, and for the other two-thirds it would have been 5 per cent., to be paid by the party holding the larger interest in the exchаnge.”
Taking the testimony of appellant as being absolutely true, although sharply contradicted, he fails to make out a case. He did not “find a buyer for his рroperty” that was “suitable” to appellees, because he found one with a defective title to his land, which he made no effort to cure. Apрellant was to be paid for the exchange of the property of аp-pellees for other property, and that property, by the terms of a contract procured by appellant, was to be held by “a goоd merchantable title” in Denton. In order that the broker may recover cоmmissions in case of an exchange of properties, he must show either that there was no stipulation as to the title of the person found by him, or that such а stipulation was met by an offer to give such title as the stipulation demanded. English v. George Realty Co.,
In the contract entered into between appel-lees and Denton it was agreed that each party should deposit $250 in esсrow as “earnest money,” and—
“that if either party to this contract fail or refuse to comply with the obligations hereby entered into that the party in default shall forfeit the two hundred and fifty ($250.00) dollars placed in escrow as liquidated damages for breach of contract.”
Quite similar language was held to prevent specific performance of the contract, and that the seller is bound to accept the sum for damages against the purchaser, and thаt the broker who had procured such a contract could not recоver commissions against the seller. Simpson v. Eardley,
The contraсt in this ease was conditional upon the ability of the parties to make а good title. This distinguishes it from the case of Seidel v. Walker,
The judgment is affirmed.
<@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes