
    FRANCES et al. v. FOSTER.
    (No. 532-4010.)
    (Commission of Appeals of Texas, Section A.
    April 23, 1924.)
    Brokers &wkey;>54 — -Live stock brokers may recover commissions notwithstanding purchaser from their principal becomes unable to pay.
    Where live stock brokers procure purchasers for stock listed with them, with whom seller enters into contract whereby he receives part of purchase price at date of contract, balance to be paid on delivery of stock, brokers are not precluded from recovering commissions because at date of delivery purchasers are not financially able to pay for property purchased.
    ©m>For other eases see same topic and KEY-jN UMBER in all Key-Numbered Digests and Indexes
    Certified Question from Court of Civil Appeals of Third Supreme Judicial District.
    Action between A. C. Frances and others and W. L. Foster, wherein Jlie former appeal. Question certified from Court of Civil Appeals.
    Question answered.
    O. W. Fannin, of Midland, and Tom Gar-rard, of Austin, for appellants.
    Hill, Neill & Hill, of San Angelo, for ap-pellee.
   CHAPMAN, J.

The Court of Civil Appeals of the Third District, having failed to reach an agreement as to the proper disposition of this case, certified to this court the following question:

Where brokers of live stock who procure purchasers for such stock listed with them, whom the principal or seller accepts and enters into a valid and enforceable contract whereby he receives a part of the purchase price at the date of tbe contract, the balance to be paid on a future agreed date for the delivery of said stock, are the brokers precluded from a recovery of their commissions because of the fact that at the date of the delivery the purchasers are not financially able to pay for the property they had agreed to purchase?

“If the principal and the customer found by the broker enter into a valid contract, and the broker acts in good faith, the broker is not deprived of his right to a commission by the fact that the customer fails or is unable to carry out the contract, such as a contract of purchase or a contract of exchange.” 9 G. J. 631.

This text is upheld- by many decisions from various states cited in the notes to the text.

In the case of Keener v. Cleveland et al., 250 S. W. 151, Judge German, of the Commission of Appeals of Texas, used the fol-' lowing language:

“And where the seller accepts the purchaser tendered, it is not necessary to show that he was ready, willing, and able to buy,”

—and several eases are there cited to uphold said statement. The only exception to this rule seems to be where the purchaser was not able to perform, and that fact was known by the agent, but there is nothing in the case before us, either in the certified question nor in the opinion by the court, to disclose that the agent knew that the purchaser was not able to perform on the date that the contract was entered into, nor for that matter is there any positive evidence that shows that the purchaser was not able to perform on the date that he entered into the contract with the seller. The position is taken in the dissenting opinion on the case now before us that the rule above stated applies only to cases of the sale of real estate where specific performance may be enforced; but upon an investigation of the authorities we cannot agree with this contention, but are of the opinion that the holding quoted is based upon the principle that, when the seller enters into a binding contract with a purchaser acceptable to him, the seller assumes the risk as to whether or not the purchaser will be in position to perform his part of the contract, and that when such contract is so entered into by the seller the agent has performed all the duties that he can perform under his employment. In the ease under consideration the majority opinion discloses that the agent procured a purchaser with whom the seller entered into a' binding contract, apd the purchaser paid a part of the purchase money, amounting to $10 per head on the cattle, on the date that the contract was made. The cattle were to be delivered and the balance of the purchase price paid some two months later, and at that time the purchasers represented to the seller that they were unable to perform their contract, and took up with the seller the matter of a compromise, and a compromise was effected by the seller retaining the $10 per head that had been paid on the cattle, and keeping his cattle, and releasing the purchaser from any further liability.

In answer to the contention that the principle quoted from Corpus Juris applies only to cases of sale of real estate where specific performance can be enforced, we find the case of Fox v. Ryan, 240 Ill. 391, 88 N. E. 975, was a sale of mining stock; the case of Swank & Letton v. Roberts, 24 Cal. App. 730, 142 Pac. 104, was a lease on apartments; Micks et al. v. Stevenson, 22 Ind. App. 475, 51 N. E. 492, was a sale of corporation stock; E. R. and D. C. Kolp v. Brazer (Tex. Civ. App.) 161 S. W. 899, was a case in which the agent had made a sale of several cars of feedstuff; the case of Keener v. Cleveland, above cited, was the sale of an oil lease; and in all these cases the law as above quoted from Corpus Juris is upheld.

We therefore answer that, under the conditions stated in the question above set out, the agent was entitled to his commission.

CURETON, C. J. The opinion of the Commission of Appeals answering certified question is adopted and ordered certified to' the Court of Civil Appeals.  