196 Ky. 459 | Ky. Ct. App. | 1922
Opinion op the Court by
-Granting appeal and reversing.
Hays- Foster, J. W. Rochester and K. S. Alcorn, who owned a farm and some town lots, employed G. B. Swine-broad and W. ,E. Moss, real estate agents, to sell tbe property at public auction and agreed to pay them a commission of five per cent, if there .was a -sale, but only $250.00 if no sale was made. The property was cried at public auction on February 11, 1919, and James Stringer became tbe purchaser of tbe farm at tbe p-rice of $8,500.00, and tbe town lots at the price of $2,125.00. On the same day the owners entered into a contract with Stringer, by wbicb he was to pay $100.00 in -cash and $1,700.00 on the delivery of the deed, which was to take place on February,24, and to execute his five notes for
Having declined to pay the full commission of five per cent, Swinebroad and Moss sued the owners to recover that amount. At the conclusion of the' evidence, the court instructed the jury as follows:'
“You will find for the plaintiffs the sum of $531.25, with interest from February 11, 1919, unless you believe that the defendants did not accept James Stringer as the purchaser of the land, in which event you will find for the defendants.”
The jury found for the defendants and the court entered judgment in favor of plaintiffs for only $250.00 and interest. Plaintiffs pray an appeal.
The only question we need discuss is whether appellants were entitled to a peremptory instruction. Conceding that Stringer was unable to comply with his contract because of his insolvency, the question is, does that fact in any way affect appellants’ right to their commission? While there are some decisions in England and a few in America to the contrary, the great weight of authority is to the effect that where the purchaser presented by the broker is accepted by the owner, and they enter into a binding contract of sale, the broker is entitled to his commissions, although the purchaser proves to be financially irresponsible or fails to meet " the deferred payments, unless the broker has been guilty of bad faith, 4 R. C. L. 311; Payne v. Ponder, 39 Ga. 283; 77 S. E. 32, and such is the rule in this state.
Wherefore the appeal is granted and the judgment is reversed and cause remanded for a new trial consistent with this opinion.