
    NO. 7848.
    SUCCESSION OF L. H. FAIRCHILD.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OÍIHIOH.

at.Raul, Judge.

Shis is a rule taken by the executors against the defendants, agents of the deceased, to show cause v:hy they should not turn over an alleged balance in their hands ($1475. less ^490.75, ay .;984.2cJ.

Ihe defense is that the balance is in d-fendrnt's favor (v6c.7o) by reason of a credit of ¿1050. to which they are ntitled as earned cor/raission on a sale of certain real estate.

The validity of this credit is the only issue.presented.

I.

On Dec 28th 1916, the deceased "agreed and bound hinself to 3oi 1 an-’ convey" certain real estate to one C-allagher-for 55000. pay; ble cash -,.t 'the time of conveyance, which was to bo not later than ilurch ist 1917. On his part Gallagher "guaranteed the pay.Jent of said price on the conveyance of it the title by the said vendor", ^.nd was further provided that •"in the event that tho sale is consulatei the vendor agrees to pay Gurley _ rar.:inso:i three per cent comission on GSoOQO."

It is adiaitted "th-.t tho agreer-.nat of Dec 28th 1918 was extended Iron tine to tine by 1. ■£. I'airohild during his life time, and hy his executors after his death, up to April 2fth 1119; tho said extensions being i: .riti.ig and Gallagher (rv^ •..greoiiig to pa„ su. pe” cent isi th: pur j'-ase price curing the lii'o of each extension".

And It is shown by ths ### evidence of defendants themselves that when the last extension expired "Gallagher asked for a farther extension", which the exeoutors declined to make.

It is also admitted "that the right of Gallagher under the contract of Bee 1916, expired on the 26th day of April 1919.And no demand was made on him by the Riarchlld Estate for specific performance of the agreement.Because of the statement made to me ('Counsel for the executors) by Mr Parkinson, employed by the Fairchild Estate to make the sale, that Gallagher would have to be sued in order to compel him to take title."

II.

It will therefore be seen,-I. That the commission was to be due only "in the event that the sale is consúmate!"; and 2. That Gallagher defaulted on his agreement regularly from March 1st 1917 until April 25th 1919; that even then he sought, but was unable to obtain a further extension; that although no legal formality was employed to establish his default, nevertheless he was so far actually in default that he "would have to be sued in order to compel him to take title".

III.

There was judgment below for the defendants, blit we think that judgment was error.

I. By the terras of the agreement the commission was due only "in the event that the sale was oonsumated"; and these words, ‘sufficiently plain in themselves, have been interpreted for words to to the same effect) to have reference to a completed sale translative of title, and not a mere executory promise of sale, never carried out. Jordy vs Salmen Co, 121 La 457; Terry vs Schenck, 10 Orleans App 62; Mc Williams vs Lyons, b Orleans App 231.

2.,Kor does such a clause materially alter the rights of the parties under the general laW. It is fairly well settled that (in the absence of a olear agreement to the contrary) a broker's commission on a sale is not earned unless the Sale be actually completed. De Santos vs Taney, 13 An 151; Loyacano vs Thompson, 4 Orleans App 345; Sonneman vs Cutter, 10 Orleans App 155; Haight vs Marrero, 12 Orleans App 369,

Of course where the broker has produced a purchaser I able and willing to buy, and the failure to complete the sale results from the act or fault of him who has promised the commission, the case is different for the commission is then 1 due. Roberst vs Thomas, 8 Orleans App 210; Slattery vs Hussey, 4 Orleans App 65; Gurley & Parkinson vs Loeffler, 14 Orleans App 424.

IT.

In the case before us the failure so complete the sale resulted from no aot or fault of the deceased ox his exeouters, but solely because Gallaghes.fcSB «¿willing br unable to tajee title; that 14 to say, unles* m. « to impute as a fault their unwillingness to embark upon litigation t» etlforoe the promise of sale.

But we do not think that this oan be. A right of action for a thing may as an abstract proposition be the sane as the possession thereof, but practically the two are very different; for litigation is always expensive, never'/certain, aften profitless even though successful, and sometimes ruinous.

Henoe a reward promised for procuring the price for a thing which one wishes to sell, may well be refused for producing only a promise of such price.

And henoe the procuring of a purchaser able and willing to buy, contemplates one who shows his ability and willingness by voluntary performance*or offer to perform, not simply one who might for might not) be coerced into doing 30.

We therefore think that plaintiffs, in rule were jusitified in refusing to go further when it became manifest that Gall'agher would not comply with his agreement unless under compulsion of law.

The judgment appealed from is therefore reversed, and it is now -ordered that defendants in rule,, Gurley & Parkinson, do pay over to the executors the sum of Hine hundred and eighty ^our 25/100 Dollar's (¿984.25) and costs of both courts.

New Orleans June 28th, 1920.  