when the principal himself effects a sale through another agent within that period. The agent first appointed has an immediate right of action to recover his commissions. And the owner cannot deduct from the commissions agreed to be paid to his exclusive agent the amount of commissions paid by him to another agent for effecting a sale.

Section 163.-MISREPRESENTATION BY OWNER. -Where by means of a fraudulent misrepresentation of the principal that he had not sold the land, and had changed his intention as to selling it, the agent having an exclusive right of sale was induced to accept part payment of his commission in satisfaction of the obligation of the principal, he is entitled to rescind the agreement for satisfaction, and recover the full amount of commission which had previously matured in his behalf, by reason of a sale effected. by the principal of which he was ignorant.

Section 164.-WHAT CONSTITUTES A SALE BY OWNER.—It is not necessary, in order to constitute a sale by the owner sufficient to entitle the agent to his commissions, that the owner should sell for cash, or upon the same terms the agent was authorized to effect, or that he should make a conveyance, or that a legal title should pass to his purchaser. In a case decided by the Supreme Court of California, Shainwald, Buckbee & Co. sued M. K. Cady for commissions on the sale of the townsite of Agua Caliente. In the written agreement given by Cady to the agents, authorizing them to find a purchaser, it was stipulated that if Cady himself made a sale of the property within the term of the agreement, the agents were to be allowed two per cent commissions upon the amount of such sale; Cady sold the land, partly on credit, and the purchaser afterwards failed to make stipulated payments, and surrendered the contract and delivered up possession of the land; and at the time when Shainwald, Buckbee & Co. sued Cady for their commissions, he had again possession

of the land. The Supreme Court decided that Shainwald, Buckbee & Co. were entitled to their commissions, because Cady had absolutely placed it out of their power to make a sale of the property at all. Cady had received a portion of the purchase price, and given up possession of the property; and although the purchaser failed to keep possession, and surrendered the contract, and turned the possession back to Cady, the Supreme Court said that a sale was consummated sufficient in law to make Cady liable to the agents under their agreement. (Decided by the Supreme Court of California in the case of Shainwald, Buckbee & Co. vs. M. K. Cady, reported in Volume 92, California Reports, page 83.)

Section

165.—LIABILITY OF AGENT UNDER CONTRACT TO SELL FOR SPECIFIED AMOUNT. -Where an agent accepts real property for sale, and binds himself in writing to sell the property within a certain time for a certain amount, and to accept all over that sum as his compensation, he makes himself absolutely liable to the owner. And if he fails to make a sale for the amount stated in his contract, within the term stipulated, the owner can sue him for damages. The owner will be entitled to recover from the agent as damages the difference between the actual market value of the land, at the end of the term within which it was to be sold, and the amount the agent bound himself to realize from it for the owner.

Section 166.-LIABILITY OF OWNER TO AUCTIONEER.-One representing himself as the owner of real estate, who employs an auctioneer to sell the same under an agreement that, in the event of a sale, the auctioneer shall receive for his services a percentage on the amount bid, cannot, after a sale by the auctioneer, avoid paying him for his services because the purchaser refuses to take the property, owing to a real or alleged defect in the title. The auctioneer in such case is entitled to

compensation for his services, unless there is a special agreement that it shall depend on the consummation of the sale.

Section 167.-WHAT AGENT MUST PROVE IN SUIT TO RECOVER COMMISSIONS.-Where an agent is compelled to sue for his commissions, for effecting a sale of real estate, to entitle him to judgment in his favor, he must show that he was employed by or on behalf of the owner to make the sale, and that his authority, or some memorandum thereof, was in writing, subscribed by the party to be charged, or by his authorized agent. And before an agent can be said to have earned his commission, it must also be shown that he produced a purchaser, who was ready and willing and able to make the purchase on terms satisfactory to his employer, and that he was the efficient agent or procuring cause of the sale. The duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until this is done, his right to commissions does not accrue. It must further appear that the broker performed the duty assumed by him within the time limited in his contract, or within such extension of time as may have been granted by his employer. If he failed to do that, he is not entitled to the commission, even though he made efforts to sell the property, and first called it to the attention of the party who subsequently made the purchase, unless the delay was caused by the negligence, fault, or fraud of the owner.

Civil Code, Section 1624.

Section 168.-AGENT'S MISTAKE AS TO TITLE.When the agent has received a deposit, and the purchaser afterwards claims that the title is not good and demands the deposit back, the agent, if he be a simple agent to sell, I will take his own chances if he returns the deposit to the purchaser. For if the owner insists upon the purchaser

taking the lands, and litigation follows, and it is decided that the title to the land was in reality good, the agent will be compelled to pay the amount of the deposit to the owner, less his commissions, even though he has already returned the deposit to the purchaser; and he will not be protected by the fact that he obtained the opinion of an attorney, and acted upon it in good faith, that the title was not good, before returning the deposit. His liability for the deposit to his principal will depend upon the fact, whether the title was or was not good, and not upon what he or anybody else may have thought about it, and the only way to determine the matter definitely is by a judgment of a court.

Section 169.—REPUDIATION OF CONTRACT BY VENDOR.-Real estate agents may recover from their principal the commission agreed upon for a sale secured by them, if the proposed contract of sale was not beyond their authority, though the vendor refuses absolutely to consummate the purchase or to negotiate with reference to it. It is immaterial whether the power conferred upon real estate agents is to sell or merely to secure a purchaser, so far as their right to recover the agreed commission is concerned, if they comply with their part of the contract in procuring a purchaser, to whom the vendor refuses to convey.

Section 170.-TERMS OF PAYMENT, AND FUSAL TO ACCEPT TENDER.-A contract between a vendor and a real estate agent, providing that the terms of payment are to be as buyer and seller may agree, does not impose upon the agent the duty of selling for cash, even if it be construed as reserving to the vendor the right to agree upon the terms in person; and there can be no reasonable objection to the terms of payment as a defense to the recovery of commissions, if when cash was tendered by the purchaser, no objection was made on account of the terms. When the vendor has refused to accept the tender

of the purchase money, and repudiated the contract made by his real estate agent with the purchaser, he cannot defend against the payment of commissions on the ground that the purchase money was not paid.

Section 171.-HUSBAND GIVING AGENT PROPERTY OF WIFE TO SELL.-Where a vendor gives to real estate agents the property of his wife to sell as his property, and describes it in the contract, and they procure a purchaser without knowledge that the title was not in the vendor, his want of title cannot affect their right to recover their commissions from him.

Section 172.-WHAT CONSTITUTES FINDING A PURCHASER.-To find a purchaser means more than to procure some one who will offer to negotiate for the purchase. It implies the production of one who is not only ready and willing to comply with the terms of the purchase, but who has also the present ability to consummate it, and to comply with all of its terms, and who is also willing and ready to do all the acts that may be required to make an actual purchase of the land. To proone who makes an offer to purchase, and who is without means, or who is not in condition to comply with the terms of the sale, and against whom a claim for damages resulting from a failure to perform the contract of purchase could not be enforced, does not constitute the finding of a purchaser within the meaning of the law; and

duce

the

mere statement by one who is produced that he is ready and willing to make the purchase, is not sufficient, for he must satisfy the owner that he has the ability to do so. Upon the production of such purchaser, if the transaction is not to be consummated by an immediate delivery of the deed and payment of the purchase price, the owner has the right to demand that a valid, enforceable contract for the purchase of the land shall be executed by him. The owner may, however, waive the execution of such