Kimberly v. Henderson , 29 Md. 512 ( 1868 )

Alvey, J.,

delivered the opinion of the court.

From the character of the contract, and the other unquestionable evidence set out in the record, it is manifest that the sale was not so far effected as to entitle the appellees to their commissions as brokers. To be entitled, they should have completed the sale — that is, they should have found a purchaser in a situation, and ready and willing to complete the purchase according to the terms agreed on. The undertaking to procure a purchaser requires, of the party so undertaking, not simply to name, or introduce a person who may be willing to make any sort of contract in reference to the property, but to produce a party capable, and who ultimately becomes the purchaser. These propositions are settled by Keener v. Harrod, 2 Md. 63; McGavock v. Woodlief, 20 How. 221.

Here the undertaking failed. A party was produced, it is true, and a contract entered into through the agency of the appellees, but of such a character that the party contracting, by the exercise of an option given him, relieved himself of the obligation to complete the purchase, and did not, in fact, become the purchaser. Moreover, the written memorandum of sale was prepared by one of the appellees, and it appears, from his own testimony, that the clause under which the contract was surrendered, was inserted at his own instance, to accomplish a purpose he had in view, and of which purpose he made no communication to his principal — so that, if the right to full commissions on the entire contract-price of the property is made to abide the election given the party with whom the contract was made, the appellees cannot complain.

The instruction given the jury, at the instance of the appellees, affirmed that the appellees were entitled to their corn-*missions as brokers for their services in effecting the negotiations which terminated in the agreement of the 17th of May, as fully as if a deed for the property had been executed, and the purchase money paid. This was clearly erroneous.

The first and third prayers of the appellant should have been granted; and, without affirming the literal correctness of the second and fourth prayers, we must reverse the judg.ment. But as it is apparent that the amount recoverable is less than sufficient to maintain the jurisdiction of the court below, we shall reverse without awarding procedendo.

Judgment reversed.