J. F. Aigler & Co. v. Carpenter Place Land Co.

51 Kan. 718

Opinion

The opinion of the court was delivered by

Horton C. J.:

This action was brought by J. E. Aigler & Co. against the Carpenter Place Land Company, to recover $481.20, for a commission which they claimed was due them for services as agents in the sale of certain real estate belonging to the land company. The company employed the plaintiffs as its agents to find a purchaser for certain real estate, and authorized them to sell the real estate for a fixed price and on definite terms: $500 to be paid in cash, $1,500 in 15 days, and the balance in three equal annual installments, with 8 per cent, interest, for which the purchaser was to execute his notes and secure the same by mortgage on the real estate. The defendant was to pay a commission of 5 per cent, on the gross amount of the sale. D. S. Goodhue was introduced as a purchaser, and on September 21, 1887, signed a written option contract to purchase the real estate for $9,724. This was treated by the parties and the court below as only an option on the property. Goodhue refused to take the property, because he did not think it a good purchase. He preferred to forfeit $500, which he had paid for his option.

Under the facts disclosed, the plaintiffs were not entitled to their commission of 5 per cent. In order for a real estate agent to recover a commission from a landowner for the sale of his land, he must find a person ready, willing and able to buy upon the terms proposed; not one who will take an option only. If the land company had been able to collect the pur chase price ($9,724) from Goodhue, a different case would be presented. (Dwyer v. Raborn, 33 Pac. Rep. [Wash.] 350; Potvin v. Curran, 13 Neb. 302; Jones v. Stevens, 55 N. W. Rep. [Neb.] 251.)

The judgment of the district court will be affirmed.

All the Justices concurring.