Sec. 155. Burden Of Proof As To Financial Ability Of Purchaser

"Whether in actions generally by agents to recover commissions for procuring purchasers, where there has been no consummation of the sale, the burden is upon the agent to show the ability of the proposed purchaser to pay the consideration, or upon the seller to show the want of that ability, is a question about which there is a conflict of authority. Some hold that solvency and ability are to be presumed; others maintain the opposite doctrine. In view of the particular facts of the case (the purchaser had been accepted without condition or inquiry), we deem it unnecessary to express an opinion upon the broad question. Whatever doubt there may be as regards the general question above stated, we are of the opinion that when the principal accepts the purchaser without question of his ability to perform, and the sale fails of consummation of his own fault or failure to make good his offer, the burden is upon him, in order to defeat the agent's rights to compensation, to show the purchaser's want of ability.45 In that case, where the facts were quite like those in this, the court said: 'Upon this question the authorities are conflicting, but we think the true rule is this: That as a general proposition, a broker who has been employed to sell is not entitled to recover his commission unless he shows that he procured a person willing, ready and able to purchase upon the terms prescribed by his principal; but where it appears that the proposed purchaser was accepted by the principal, the burden is upon the latter to show that the purchaser was not able to comply with the terms of the contract.' "46

44 Moore v. Irvin. 20 L. R. A. (N. S.) 1172 (Ark. 1909) where other authorities are cited.

45 Citing Davis v. Morgan, 90 Ga. 518, 520; 23 S. E. 417.

46 Dotson v. Mllliken, 27 App. D. C. 515, 516 (1906), (citing Lockwood v. Halsey, 41 Kans. 166, 169; 21 Pac. 98; Fairly v. Wappoo Mills, 44 8. C. 227, 248; 29 L. B. A. 215; 22 S. E. 108). See also Sec. 153, 154 supra.