
    F. G. SIMMONS et al., Appellants, v. J. F. ONETH, Respondent.
    Springfield Court of Appeals,
    January 3, 1910.
    1. REAL ESTATE BROKER: Producing Purchaser Ready, Able, etc.: Commission. Where a real estate agent finds a purchaser who offers to take a farm at a certain price provided he can get possession by a certain date, and the owner agrees as to the price hut makes no definite promise as to possession, further than “to try to give possession on the said date if nothing prevents,” and a series of unfortunate happenings did prevent him from giving possession at that date, whereupon the purchaser refused to take .the farm; held, that the agent was not entitled to a commission, for he had not found a purchaser ready, able and willing to take the farm on the terms fixed by the owner.
    2. -: -: -: Time of Delivery of Possession of Property. When property is placed in the hands of an agent to sell at. a certain price and no time is fixed for possession to be given, the agent is entitled to his commission when he produces a purchaser ready, able and willing to take the property at the price named, and the pwner cannot avoid paying a commission by refusing immediate possession.
    3. -: -: -. A real estate broker earns his commission when he produces and introduces to the principal a buyer who is able, ready and willing to buy on the terms at which the broker is authorized to sell.
    4. -: Procuring Cause of Sale: Consummated by Owner. Where the agent is the procuring cause of negotiations which result in the sale, he is entitled to his commission, even though the negotiations were conducted and concluded by the principal in person.
    5. -: -: Commission: Failure of Owner to Carry out Contract. Where the principal, on the production of a purchaser by the broker, fixes or varies the terms and fails to carry out his contract and convey according to the modified terms agreed upon, he is nevertheless liable for the commission.
    Appeal from Greene Circuit Court. — Hon. James T. Ne-ville, Judge.
    
      Affirmed.
    
      Watson & Balyer for appellants.
    (1) A real estate broker earns bis commission when be finds and produces to tbe seller a buyer for tbe land, wbo is ready, able and willing to buy upon tbe terms upon wbicb the broker is authorized to negotiate tbe sale. Brown v. Smith, 183 Mo. App. 68; Reiger & Thompson v. Merrill, 125 Mo. App. 549; Moore v. Mount-castle, 61 Mo. 424; Peycke Bros. v. Aherns, 98 Mo. App. 456; 2 A. & E. Ency. of Law (2 Ed.), p. 844; 9 Cyc. pp. 245, 246, 247; Haubelt Bros. y. Mill Co., 77 Mo. App. 681. (2) Time is not generally demanded to be of tbe essence of a contract for tbe sale and conveyance of real estate. Mastín v. Grimes, 88 Mo. 478; O’Pallon y. Kennerly, 45 Mb. 124.
    
      A. H. Wear for respondent.
    Tbe offer made by Bryan was not accepted by Gnetb, respondent, in such manner as to make a complete contract between tbe two. “In order that tbe acceptance of an offer may result in a binding contract, it must be absolute, and identical with tbe terms of tbe offer; or as it has been expressed, an acceptance to be good must in every respect meet and correspond with tbe offer neither falling within nor going beyond tbe terms proposed, but exactly meeting them at all points and closing with them just as they stand.” Clark on Contracts (Hornbook Series), p. 36; Eads v. City of Carondelet, 42 Mo. 113; Bruner v. Wheaton, 46 Mo. 363; Corser v. Hale, 149 Past. 274; Corcoran y. White, 7 N. E. 525.
   GRAY, J.

This cause was commenced in tbe Greene Circuit Court in January, 1908, to recover a commission for finding a purchaser for tbe farm of tbe respondent. Tbe answer was a general denial. A jury was waived and a trial bad December 23, 1908, resulting in a judgment for the defendant, and plaintiffs appealed.

There is not much controversy over the facts in the case, and a correct statement of the same is about as follows: The defendant owned a farm in Webster county, .and listed the same with the appellants, or one of them, as real estate agents, to sell. The appellants advertised the farm for sale, and finally interested one O. W. Bryan, of Rhome, Texas, to come to Springfield in October, 1907, with the view of purchasing the farm. The appellant, Watts, took Bryan out in the country to see some farms, and including the farm of the respondent. At the time the farm was placed with the agents to sell, the price was fixed at $3200, with nothing said about time for possession. After some talk, the defendant reduced the price to $2900, but the deal was not consummated and Bryan went to his Texas home.

On October 15,1907, Bryan wrote Watts at Rogers-ville, stating that he would take Oneth’s farm at $2900', and that he wanted possession the 15th of November, or as soon as possible. On October 19th, Bryan wrote the bank at Rogersville, enclosing a check for $500, to be held as a forfeit on the deal for the respondent’s land. In this letter, the bank was directed to sign a contract, binding Bryan to buy the land for $2900, possession to be given on or before .November 20th. On the same date, he wrote the respondent a letter informing him that he had sent the check for $500 to the bank as a forfeit, and that he had agreed to take the place for $2,900, provided Oneth would furnish a perfect abstract of title and warranty deed, and possession of place by November 20, 1907. On October 24, the respondent answered the letter, accepting the terms, except as to possession, and said in regard to that matter: “Will try and give possession of the place by the 20th of November, if nothing prevents.” About the 15th of November, Bryan came to Missouri and wanted possession of the farm by the 20th, according to his proposition of purchase. Oneth informed him he eonld not give possession on the 20th; that he would have to have eight days longer, hut finally offered to give possession by the 22nd of November. Bryan objected to this, said he had his family paying board at a hotel, and wanted to get on the farm where the members of his family eonld have some rest. The respondent informed him that he eonld not give possession on the 20th, on account of misfortunes; that on the 17th of November, his boy, who was teaching school, had been stabbed by a pupil; that one of his horses had died and one had got sick and he had' to depend on his neighbors to get rid of things on the farm, but he would give him possession by the 22nd, as above stated.

Bryan at all times refused to carry out the contract unless he could have possession on the 20th. It seems while the parties were thus quibbling and unable to agree on the date of possession, the deal was called off. A real estate broker earns his commission when he produces and introduces to his principal a buyer who is able, ready and willing to buy on the terms at which the broker is authorized to sell. And where the agent is the procuring cause of negotiations which result in the sale, he is entitled to his commission, even though the negotiations were conducted and concluded by the principal in person. [Morgan v. Keller, 194 Mo. 663, 92 S. W. 75.] And the authorities agree that where the principal, on the production of a purchaser by the broker, fixes or varies the terms, he is liable for the commission, if he fails to carry out his contract, and convey according to the modified terms agreed upon by the buyer. [Sallee v. McMurray, 113 Mo. App. 253, 88 S. W. 157.]

In this case when the property was placed in the hands of the agents to sell for $3,200, and no time fixed for possession to be given, the agents were entitled to their commission when they produced a person ready, able and willing to take the property for $3,200, and tbe respondent conld not baye avoided tbe payment of tbe commission by refusing possession at once. But in this case, tbe appellants did not find a purchaser ready and willing to buy tbe property at tbe price first fixed by tbe respondent. On tbe contrary, they found a man ready and willing to buy tbe property for $2,900, provided, be could have possession on or before November 20th. Tbe respondent never agreed to give possession on.November 20th. He agreed to give possession on that date if nothing prevented. It stands admitted in tbe case that bis boy bad been stabbed on tbe 17th of tbe month; that one of bis horses bad died and another was sick, so that be bad to rely somewhat on bis neighbors for assistance in gathering bis crops. With all of this showing that be was acting in tbe utmost good faith, be offered to give possession on the 22nd of tbe month, and to pay tbe board of Mr. Bryan’s family at a hotel for tbe extra time. This proposition Bryan refused to accept, and there is no testimony in this case that be ever was ready and willing to buy tbe property unless be could have possession on tbe 20th of November, tbe day fixed in bis proposition to purchase.

When Oneth altered tbe terms upon which be bad authorized tbe appellants to sell bis farm, be bad tbe right to fix tbe time for possession. When Bryan offered to purchase, be bad tbe right to. fix in bis offer tbe date when be was to have possession. Oneth at no time bad a binding contract which be could have enforced against Bryan, as Bryan only agreed to buy if be could have possession on November 20th. Tbe appellants failed to find a purchaser ready, able and willing to take tbe farm upon tbe terms fixed by tbe owner, and therefore, did not earn their commissions. Tbe judgment is for tbe right party and will be affirmed.

All concur.  