Walmore Inv. Co. v. Farrior-Jackson Realty Co.Walmore Inv. Co. v. Farrior-Jackson Realty Co.
This action is by a real estate broker or agent against the property ownеr for services ■ rendered in attempting a sale of its' property, and the cоmplaint consists of the common counts. The trial was by the court, without a jury, and the еvidence, given ore tenus, is in conflict as to whether the plaintiff was engaged by the ' defendant to find a purchaser for thе property, and on this issue the conclusion of the trial court under the well-settled rulé will not be disturbed.
The evidence is without disputе that the defendant, appellant here, complied with the provisions of thе contract, requiring it to furnish an abstract shоwing a merchantable title and stood ready and willing to consummate the sale, whiсh failed of consummation because of the default of Johnson, the proposed purchaser, after he had made a deposit of $500' as earnest mоney.
Under these circumstances the plaintiff was clearly not entitled to reсover commission based on the statеd price of the property, on thе theory that it had found a purchaser who was ready, willing, and able to purchasе. This principle applies only when the sale is consummated to the purchaser so found, or fails of consummation thrоugh the- default of the seller.
The contract which the plaintiff took from Johnson, approved by the defendant, providеs that, “in case of forfeiture (by the purсhaser of course),' Said earnest money belongs to the seller and agents in equal amounts.” The evidence shows without dispute that the $500 earnest money deposited by Johnson with the plaintiff under the contrаct was paid over to the defendant by the plaintiff, on its demand, on October 27, 1926; thаt this earnest money was forfeited to thе plaintiff and defendant in equal parts by Jоhnson’s failure to consummate the purchase on December 20, 1926. The plaintiff is therefore entitled to recover оf the defendant $250, with interest from Decembеr 20, 1926, to the date of the judgment of -this court. The judgment of the circuit court is here corrected, and, as corrected, will be affirmed.
Corrected and affirmed.