
    FRED W. LITTLE and JESSE C. LITTLE, Co-partners, Respondents, v. A. FLEISHMAN, Appellant.
    No. 2010.
    Decided April 30, 1909
    (101 Pac. 984).
    Bhokebs — Commissions—When Eabned. A broker given, the exclusive authority to sell real estate on terms specified for a fixed commission in the event of a sale, who produced a purchaser who was ready, able, and willing to purchase on the terms specified, and who entered into a contract with the owner for the sale and purchase of the property, was entitled to the commissions, though the sale was not consummated because of the owner’s inability to furnish a sufficient abstract of title. (Page 568.)
    Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.
    Action by Fred W. Little and Jesse C. Little, co-partners doing business under the firm name of Little & Little, against A. Fleishman to recover broker’s commission.
    Appirmed.
    Bicharás, Bicharás & Ferry for appellant.
    
      Van Gott, Allison Ac Biter for respondent
   STRAUP, C. J.

Little & Little, real estate brokers, brought this action against Fleishman to recover their commission for the sale-of real estate. The terms of their agreement are contained in the following proposition submitted by Fleishman to Little & Little on the 3rd day of December, 1906: “Yon are given exclusive authority to sell for me the following described property,” situated in Salt Lake City, “for the sum of thirty-three thousand dollars upon the following terms, to wit, twenty-five hundred cash, bal. thirty days; and in the event of a sale at any price agreed upon I agree to pay the regular commission, which is five per cent, on amounts up to twenty-five hundred dollars and two and one half per cent, on amounts in excess thereof. This order good for till five p. m. to-day.” On the same day, and within the time specified, Little & Little procured a purchaser, a Mr. Lichenstein, who was able, ready, and willing to buy the property on the terms proposed. On that day, and after plaintiffs had introduced Lichenstein to Fleish-man, the two last-named parties entered into a written agreement whereby Fleishman agreed to sell the property to Lich-enstein for the sum of thirty-three thousand dollars. Twenty-five hundred dollars was that day paid in cash, five thousand dollars to be paid January 2, 1907, and twenty-five thousand and five hundred dollars February 1, 1907. Fleish-man agreed within ten days from the date of the agreement “to furnish to date and tender to said second party (Lichen-stein) a complete abstract of said premises;” that Lichen-stein should have until January 2, 1907, to examine the abstract, and “if the title is marketable, and' the said second party elects not to buy, then said receipted sum is forfeited; if the title is not marketable, then said receipted sum to be returned,” to tender to Lichenstein a deed on February 1, 1907, or sooner if demanded, if title is not marketable, then, to make it so on demand, “if the said second party binds himself to buy,” and' “to accept payment (if said second party buy)” of the balance of the purchase price. Upon an-examination- of the abstract of title by an attorney employed by Lichenstein for that purpose, it was discovered before January 2, 1907, that Fleishman’s title was defective and unmarketable, and upon this ground alone, and none other, Lichenstein refused to purchase the property, and demanded a return of the twenty-five hundred dollars theretofore paid by him, “although” as found by the court, “if the defendant’s title thereto had been marketable, he would have purchased and was ready, willing, and able to purchase the same on the terms contained in the contract” entered into between himself and Fleishman. When Fleish-man listed the property with plaintiffs, he represented himself to be the owner thereof in fee simple, and “made no mention to them that there was any flaw or defect in his title,” and until the defect in the title was discovered by Lichenstein’s attorney they had no knowledge that the title was defective or unmarketable. The case was tried to the court without a jury, who rendered a judgment in favor of the plaintiffs.

The defendant on appeal, briefly stating, contends that by the terms of the agreement between plaintiffs and the defendant they undertook, not merely to procure a purchaser, but to sell the property; that the defendant agreed to pay the commission “in the event of a sale;” that the agreement entered into between Lichenstein and Fleishman was not a sale but a mere option to purchase, and hence plaintiffs had not earned and were not entitled to a commission. There would be force to appellant’s contention if the failure to buy had not been due to the owner’s fault. The substantial features of the agreement between plaintiffs and the defendant are that the plaintiffs were employed to effect, not consummate, a sale, and were entitled to a commission in the event of a sale at any price agreed upon. When the plaintiff obtained and procured a purchaser who was able, ready, and willing to purchase for the price, and on the terms proposed, they did all that was required of them, and the owner could not, under the terms of his contract with them, arbitrarily refuse to' sell and decline to enter into negotiations of a sale with the proposed purchaser without becoming liable to plaintiffs for their commission. The owner, however, accepted' the proposed purchaser and entered into a contract of sale with him upon terms suitable to and agreed upon by the owner. The purchaser was able, ready, and willing to purchase the property on such terms, and the reason why the sale was not consummated was solely due to the owner’s inability to furnish a sufficient abstract of a good and marketable title. We think in such case the plaintiffs earned and were entitled to their commission. (Gauthier v. West, 45 Minn. 192, 47 N. W. 656; Welch v. Young [Iowa], 79 N. W. 59; Middleton v. Findla, 25 Cal. 76; Gonzales v. Broad, 57 Cal. 224; Phelan v. Gardner, 43 Cal. 306; Smith v. Schiele, 93 Cal. 144, 28 Pac. 857; Leete v. Norton, 43 Conn. 219.) The ruling in the case of Stewart v. Fowler, 37 Kan. 677, 15 Pac. 918, cited by appellant, was modified on a subsequent appeal of the same case. (Stewart v. Fowler, 53 Kan. 537, 36 Pac. 1002.) In the case of Lawrence v. Rhodes, 188 Ill. 96, 58 N. E. 910, also cited by appellant, it is not made to appear that the purchaser refused to purchase because of a defective title, or because of some other fault of the owner. In the ease of Dwyer v. Raborn, 6 Wash. 213, 33 Pac. 350, it affirmatively is made to appear that the purchaser obtained and produced refused to buy the land on the terms proposed, but was only willing to take a 60-day option.

The judgment of the court below is affirmed, with costs.

ERICK and McOARTY, JJ., concur.  