
    GEORGE H. GLADE et al., Appellants, v. A. P. FORD, Respondent.
    Kansas City Court of Appeals,
    May 25, 1908.
    1. TRIAL AND APPELLATE PRACTICE: Trial Without Jury: Finding. Findings of fact made by tbe trial court in a law case tried without a jury are tbe equivalent of a verdict, and if supported by substantial evidence must be accepted as final by tbe appellate court.
    2. CONTRACTS: Consideration: Evidence: Broker’s Commission. A contract by which á broker agreed to wait for half of his commission until tbe deferred payments on tbe real estate bad been made by bis purchaser is held to have sufficient consideration, since tbe evidence shows that tbe sale would not have occurred but for the agreement so to wait.
    3. -: -: Diligence in Collection: Insolvency: Premature Action. Where tbe seller of land agrees to pay a part of the real estate broker’s commission upon the collection of certain deferred payments from bis vendee, be is under obligation -to use reasonable and prudent efforts to collect such payments, and a failure to do so for a reasonable time would give tbe broker a right of action for bis commission; but where tbe broker brings bis action to recover bis commission be must show that suit would have been availing against tbe vendee; otherwise bis action is prematurely brought.
    Appeal from Jasper. Circuit Court. — Hon. Howard Gray, Judge.
    Affirmed.
    
      McAntire & Scott for appellants.
    (1') The defendant was not released from his original liability to pay the $1,000 for the reason that there was no consideration for the extension of time. Harburg v. Kumpf, 151 Mo. 16. (2) Where a defendant by his own negligence fails to make efforts to collect the notes clue and by his own act failed he could not by such negligence prejudice plaintiff’s rights and their right would not have to depend upon the collection of the money from the purchasers, for the reason that Ford by his own act after said notes became due, permitted attachments to remain upon the property and did not dissolve the said attachments and failed to bring suit to collect his money. Webster v. Myers, 52 M'o. App. 340; Tuerman v. Stevens, 83 Mo. 218; Croker v. Holmes, 65 Me. 195. (3) Even though the court should hold that in the construction of this contract that there was a consideration for it, it could be only held that plaintiffs were bound to wait a reasonable length of time and they had waited from 1903 until 1905. Such being the case we claim that under the authorities quoted hereunder that the court should have found a verdict for the plaintiffs. Crocker v. Holmes, 65 Me. 195, 20 Am. Bep. 687; Noyes v. Barnard, 63 Fed. 782; Nuntz v. Danter, 19 Wall. 560; Ub'sdell v. Cunningham, 22 Mo. 124; Walker v. Woollen, 54 Ind. 164; Whiting v. Grey, 11 L. E. A. 526; Howe v. Bristow, 65 Mo. App. 628; Dwolfe v. French, 51 Me. 42; Sears v. Wright, 24 Mo. 278. . (5) The court’s finding was inconsistent with the declarations of law which he gave.
    
      Cole, Burnett & Williams for respondent.
    (1) The agreement as expressed in the written instrument sued on in this case was made before the sale on the leasehold interest by Ford to Bruner and Hedrick, and unless the arrangement had been made before the sale was consummated, the sale Avould not have been made, and plaintiffs cannot recover in this case until payment has been made to defendant, Ford. (2) A note given in part payment of real estate Aims made to become due on a given date or when plaintiffs get possession of the entire tract. An action brought before he obtained such possession was premature, and whether he had possession is a question for the jury. Bank v. Porterfield, 70 Mo. App. 573. (3) From the agreement between the plaintiffs and defendant no payment was to be made, by defendant to plaintiffs until payment had been made by Bruner and Hedrick to defendant. As soon as Bruner and Hedrick pay defendant then he becomes liable to plaintiffs, and until such payment is made by Bruner and Hedrick, Ford owes plaintiffs nothing. (4) The court’s finding was not inconsistent Avith the declarations of law which he gave.
   JOHNSON, J.

Plaintiffs, real estate agents, sued to recover a commission alleged to be due them from defendant. A jury being waived by the parties, trial before the court resulted in a judgment for defendant on the finding that the action was begun prematurely. Plaintiffs appealed.

There is no dispute over the fact that defendant employed plaintiffs to procure a purchaser for a mine he owned in Jasper county at the price of $30,000, and agreed to pay them a commission of $2,000 for such services. Nor is it denied that plaintiffs found purchasers in the persons of a Mr. -Bruner and a Mr. Hedrick to whom defendant sold and conveyed the property on February 25, 1903, for $30,000; that defendant accepted a doAvn payment on the purchase price of $15,000 and the unsecured promissory notes of Bruner and Hedrick for the remainder, due in four, five and six months, and that none of those notes nor any part of them has been paid. And it is agreed that the following written instrument was signed by plaintiffs and delivered to defendant:

“Joplin, Mo., Feb. 25th, 1903.
“Received of A. P. Ford Otoe Thousand ($1,000) Dollars on account ,of commission in sale of Tennessee mine, balance one thousand ($1,000). Dollars to be paid as follows: $333.33 in four months upon the payment of a certain note of $5,000 from Bruner & Hedrick to A. P. Ford and $333.33 in five months when another note of same amount as above is paid, and $333.33 in six months when another $5,000 note is paid. In the event of the payment of the above notes before maturity then the commission is due and payable. One-half of the above amounts to J. E. Tedford and onethalf to Geo. H. Glade.”

Plaintiffs admit the payment of $1,000 recited in the instrument and this suit is for the recovery of the three deferred payments mentioned therein which aggregate $1,000 and are still unpaid.

The facts in controversy thus may be stated: It is the contention of plaintiffs, supported by evidence, that by the terms of their contract of employment with defendant, they, were entitled to receive the whole of the commission when the sale was closed, regardless of whether or not defendant sold the property partly on the credit of the purchasers; that they agreed to defer the payment of half of their commission as a matter of accommodation to defendant who requested it as a favor to him, and that the agreement was made and the instrument we have copied was signed and delivered after the sale had been fully consummated. Further, plaintiffs say that their evidence shows defendant negligently omitted to force the collection of the Bruner and Hedrick notes after they fell due, but they failed to introduce any evidence to the effect that Bruner and Hedrick were solvent or that efforts to collect the notes would have availed anything. From these facts, plaintiffs argue, first, that the agreement for the extension of time for the payment of half their commission is void for the reason that it is unsupported by a consideration and, second, that should the agreement be held to be free from this objection, nevertheless, plaintiffs are entitled to recover b cause of the fact that reasonable diligence was not employed by defendant to collect tbe Bruner and Hedrick notes.

On tbe part of defendant, tbe evidence is to the effect that when informed during the negotiations preceding the sale that the purchasers required time in which to pay half of the purchase price and would do nothing more than to give their unsecured promissory notes for the deferred payments, defendant refused to deal on such terms and did not consent to go on. with the transaction until assured by plaintiffs that the purchasers were responsible and that plaintiffs’ right to receive, payment of more than one-half of the agreed commission would be made dependent on the collection of the purchase price notes. Defendant testified: “Mr. Tedford, he was with us when the sale was made, and I Avanted to retain a lien on the mine, Bruner would not do it; he said he Avas good, worth $85,000 and his partner was worth ever so much. I was going to back out and I took Mr. Tedford out in the hall of W. B. McAntire’s office and I asked Mr. Tedford if Bruner was good, and he said yes he Avas, could be no question about it. I says, 'Here, if I let this go without any lien you don’t get your commission until I get my money.’ He says, 'I am perfectly Avilling; I am very Avilling.’ I says, 'All right, I’ll let the trade go through and take Bruner’s notes.’ ”

On the issue of defendant’s negligence in failing to use reasonable diligence to collect the purchase price notes, it is shown that defendant refrained from bringing suit on them until about tw'o years after the sale was made and long after the notes had matured. But the evidence shoAvs that shortly after the sale was made, defendant was sued by attachment on a demand of $4,500, and Bruner and Hedrick were brought into that action as garnishees and that the suit Avas compromised and settled in September, 1905, at about the same time defendant caused suit to be brought against Bruner and Hedrick on their notes. The charge of negligence rests on the ground that in omitting to make any effort to dissolve the attachment or to give a forthcoming bond, defendant negligently suffered himself to remain in a position where he could not proceed against the garnishees, his debtors. Defendant answers this by adducing evidence from which it appears that plaintiffs were kept informed fully and promptly of the proceedings in the attachment suit; that no step was taken therein by defendant except with their knowledge and approval and that they acknowledged on different occasions that they were not entitled to their unpaid commission until the purchase price notes should be collected and expressed an anxious desire that the attachment suit might be pushed to a conclusion as speedily as possible in order that the way might be opened for defendant to begin action against Bruner and Hedrick.

Plaintiffs say in their brief “the court found the issues in favor of the defendant and rendered judgment to the effect that the suit was prematurely brought by plaintiffs for the reason that there was no evidence offered or given by either party to show that from and after said notes became due that Bruner and Hedrick were solvent and on this ground and this alone, the court held that the suit was prematurely brought.”

The declarations of law given at the request of plaintiffs very clearly presented as issues to go to the court as a jury all of the facts involved in controversy and in giving them and then finding for defendant, the court necessarily must have resolved all of the contested facts against the contention of plaintiffs. Findings of fact made by the trial court in a law case tried without a' jury are the equivalent of a verdict of a jury and if supported by substantial evidence must be accepted as final by the appellate court. Therefore, we treat as a verity the version of the transaction given in the evidence introduced by defendant which, as to all disputed facts, we find to be substantial. As an inducement to defendant to make the sale on the terms proposed by the purchasers^ plaintiffs agreed to defer the payment of one-half of their commission until defendant should collect the purchase price notes and further agreed that payment of that part of their commission should not be made at all in the event defendant was unable to collect the purchaser’s notes.

On this hypothesis of fact, the contention of plaintiffs that the agreement expressed in the written instrument signed by them is void for lack of consideration is wholly without merit. We may concede that when they were employed to find a purchaser, it was on the understanding that defendant would accept a purchaser who would require some time on part of the purchase price, but it clearly appears that defendant was to be satisfied with the terms of payment offered and would be under no obligation to plaintiffs if he refused to sell on unsatisfactory terms. He was acting clearly within his right when he refused to sell on terms which compelled him to accept the unsecured notes of the purchasers and, had the negotiations then terminated, plaintiffs would not have been entitled to any commission. In such situation, their agreement Avith respect to the commission was supported by the promise of defendant afterward performed to make a sale he was under no sort of compulsion to make. This was an adequate consideration and we must hold the contract evidenced in the written receipt binding on plaintiffs. By its terms, defendant was under no obligation to pay the commission except in the manner provided, but in law, he did charge himself with the duty to plaintiffs of making reasonable and prudent efforts to collect the notes as they matured. Had it developed that the makers were solvent and could have been compelled by suit at law to pay the notes, their failure to pay would not have justified defendant in delaying for an unreasonable time the institution of such suit nor for being unreasonably slothful or dilatory in its prosecution. A negligent breach of the duty we have just defined would have entitled plaintiffs to an action against defendant for the recovery of their commission, notwithstanding their agreement was to wait until the purchase notes were paid. But in order for plaintiffs to maintain an action predicated on such negligence, it was necessary for them to adduce facts showing that the notes were collectible by suit. It devolved on them to prove the solvency of the makers of the notes since defendant could not be considered as being remiss in the performance of his duty to plaintiffs from the mere fact that he had failed to bring suit against insolvent persons. The fact of solvency was constitutive of the cause and in omitting to prove it, plaintiffs failed to make out a case. Thus the question of reasonable diligence on the part of defendant was not properly before the court as an issue of fact and no error was committed in holding that the action was brought prematurely.

What has been said is a sufficient answer to the complaint of plaintiffs that the court erred in refusing to give one of the declarations of law asked by them.

The judgment is affirmed.

All concur.  