The opinion of the court was delivered by: HOLTZOFF
The plaintiff moves for a directed verdict in his favor at the close of the testimony for both sides.
This is an action to recover a real estate broker's commission and presents a question of law whether a broker, who has procured a purchaser for real property, who enters into a binding contract with the owner of the property to purchase the property, has earned his commission and is entitled to receive it from the vendor if the purchaser declines to perform his contract.
The facts are simple. The plaintiff, a real estate broker, was retained by the defendant, the owner of an apartment house at 3300 Sixteenth Street, Northwest, Washington, D.C., to procure a purchaser for the property. Admittedly, he procured one Eli T. Conner as a purchaser, who entered into a formal written contract with the defendant to buy the property on the defendant's terms.
When the time came to settle the contract, or, rather, to consummate the transaction, there were a number of postponements, and the defendant, apparently becoming dissatisfied with some objections raised and demands made by the purchaser, re-sold the property to someone else.
The contract provided for the payment of a five per cent commission to the plaintiff and it also contained a provision that:
'If the purchaser shall fail to make full settlement the deposit herein provided for may be forfeited at the option of the seller, in which event the purchaser shall be relieved from further liability hereunder; or without forfeiting the deposit the seller may avail himself of any legal or equitable rights and remedies which he may have under this contract.'
There is no evidence that the defendant either formally forfeited the deposit or that he brought suit either for specific performance or for damages. Apparently the transaction was just abandoned by the parties when the property was resold by the defendant.
As stated before, the question presented here is whether the plaintiff is entitled to receive his commission in the light of the fact that the purchaser did not perform the contract and that it was abandoned by the parties although not formally rescinded.
'The contention of the appellant is that, when an agent procures a purchaser on the terms proposed by the principal, and the latter accepts the purchaser, then he is entitled to his commissions whether the defaulting purchaser is or is not responsible.
'The contention, on the other hand, is that before the agent is entitled to compensation, the purchaser must not only have entered into an agreement to purchase, but must also have actually complied with its terms, unless compliance is prevented by the fault of the principal.'
After citing some authorities, the Court continues:
'Under the facts of the case it is not necessary to pass upon these ...