
    Argued April 17,
    decided May 13, 1913.
    STEWART v. WILL. 
    
    (131 Pac. 1027.)
    Brokers — Sales — Negotiations —'Performance of Contract—Right to Commissions.
    1. When a broker employed to negotiate a sale of land without fault, fraud, concealment, or other improper practice produces a purchaser with whom the owner makes a valid and enforceable contract for the sale of the premises, the broker has earned his commission, though the contract is never carried out.
    [As to sufficiency of the broker’s services to entitle him to commissions, see note in 139 Am. St. Rep. 232.]
    Brokers—Exchange of Property—Right to Commissions.
    2. Where a broker employed to make an exchange of property represented to defendant, his client, that the other party to the contract had a perfect title to the land- he was to convey to defendant, and the contract of exchange was thereupon executed, but was never carried out because such title was not good, the broker could not recover commissions on the theory that he had performed Ms engagement by producing a person with whom his client executed a contract of exchange.
    [As to marketability of title and effect of the lack of it in a real estate transaction, see note in 132 Am. St. Rep. 992.]
    From Marion: Percy R. Kelly, Judge.
    Statement by Mr. Justice Moore.
    This is an action by S. B. Stewart against George Will to recover a broker’s commission for the alleged negotiation of the sale of real property. The defendant on July 23, 1910, executed to the plaintiff a writing, authorizing him to sell his farm of 275 acres in Marion County, Oregon, at $100 an acre, or to exchange the land for other real property, and in case the premises were disposed of Will promised to pay Stewart a commission of 5 per cent of the stipulated purchase price. The plaintiff secured as a buyer A. M. Abbott, with whom the defendant entered into a written contract for the sale of the farm at $27,500, in consideration for which Abbott agreed to pay in cash $2,900, to convey by a good and sufficient warranty deed a farm of 150 acres in Clarke County, Washington, subject, however, to a mortgage of $4,500, the payment of which the defendant assumed. Abbott further agreed to. assign to Will a promissory note of $6,600 secured by a mortgage of 320 acres of land in Sherman County, Oregon, and also to execute to Will a promissory note for $4,500, to be secured by a trust deed of seven acres of land at Falls City, Polk County, Oregon, ten acres near Mosier, Wasco County, and three acres and V/z lots in Chehalis, Lewis County, Washington. Abbott stipulated to furnish abstracts of the title to the real property which he was to convey in fee, and in trust, and also to the land upon which he held the mortgage for $6,600. The abstracts furnished pursuant to such agreement did not show a perfect title in Abbott to any of the tracts of land, and also disclosed that the $6,600 mortgage was a subsequent lien. For these reasons Will refused to execute to Abbott a deed of the Marion County land.
    The complaint is based on the theory that, the plaintiff having secured a purchaser with whom the defendant entered into a written contract, the commission was thereby earned.
    The answer denied some of the averments of the complaint, and for a further defense alleged that the plaintiff had represented to the defendant that Abbott’s title to the several tracts of real property was good and merchantable, when the title thereto was imperfect, setting forth the alleged defects therein.
    The reply put in issue the allegations of new matter in the answer, and the cause being tried resulted in a verdict and judgment for the defendant, and the plaintiff appeals.
    Affirmed.
    For appellant there was a brief over the names of Messrs. Seitz & Seitz, with an oral argument by Mr. Maurice W. Seitz.
    
    For respondent there was a brief over the names of Messrs. Flegel é Reynolds and Mr. George G. Bingham, with an oral argument by Mr. John W. Reynolds.
    
   Mr. Justice Moore

delivered the opinion of the court.

Several errors are assigned, but none of them will be considered except the request for a directed verdict for the plaintiff. The rule is quite general that when a broker employed to negotiate the sale of land, without fault, fraud, concealment or other improper practice, produces a purchaser with whom the owner makes a valid, binding and enforceable contract for the sale of the premises, the commission has been earned, though the contract for the sale of the land is never carried out: 23 Am. & Eng. Ency. Law (2 ed.), 917; Wilson v. Mason, 158 Ill. 304 (42 Pac. 134, 49 Am. St. Rep. 162); Francis v. Baker, 45 Minn. 83, 84 (47 N. W. 452). “When the broker,” says Mr. Justice Loring in Roche v. Smith, 176 Mass. 595, 599 (98 N. E. 152, 154, 51 L. R. A. 510, 79 Am. St. Rep. 345), “knows that the customer produced by him has not a title, and omits to tell his principal of that fact, he has not acted in good faith, and has not earned his commission.”

A. F. Flagel, as defendant’s witness, testified that the plaintiff told him that he had stated to Will at the time the exchange of the land was proposed that the title to all of the real property to be conveyed by Abbott was clear, except as to land in Chehalis, Wash. Edward Will, as defendant’s witness, in answer to the inquiry: “Were you present in the Bank of Wood-bum when Mr. Stewart and Mr. Abbott and your father were present, the time negotiations were being-had in reference to this exchange of land? Yes, sir. What, if anything, was said by Mr. Stewart at that time or by Mr. Abbott in Mr. Stewart’s presence with reference to the title of the property? To which property? The property of Mr. Abbott. The property was to be clear, clear title, all but that mortgage on the Clarke County property. ’ ’ In the case at bar there was testimony received at the trial from which the jury might reasonably have concluded that, in order to secure a contract for the exchange of the land, Stewart represented to Will that Abbott’s title to the property to be conveyed or mortgaged to the defendant was free from all encumbrances, except as to mortgages on land in the State of Washington. The abstracts submitted by Abbott disclosed defects in the title. The plaintiff probably supposed tbe title was perfect,'but representing it as such did not make it so, and be is responsible for such declarations. No error was committed in refusing to direct a verdict for Stewart.

All tbe testimony given at tbe trial has been attached, and made a part of tbe bill of exceptions. From a careful examination of tbe entire testimony, we cannot say there is no evidence to support tbe verdict: Constitution of Oregon, Article VII, § 3.

Tbe judgment is therefore affirmed. Affirmed.  