Sec. 147. Ready And Willing To Purchase (P. 155)

Although the ready, willing, and able rule is concurred in, courts in effect are sometimes led almost by the contrary rule, because of their interpretation as to what amounts to a "ready, willing and able" purchaser. For example, in Mott v. Minor,1 it was said: "In Gunn v. Rank of California,2 it is said: 'It is, of course, well settled that when a broker employed simply to negotiate a sale of real estate has found a purchaser able, ready and willing to purchase upon the vendor's terms, his right to the agreed commission is complete, and does not depend upon the final acceptance by the purchaser of a conveyance of the property sold..... But the question here is: What is finding or procuring a purchaser within the meaning of the rule of law declared in this and the other cases cited? Is it sufficient for a broker to merely find a person financially able, and who verbally agrees with him to purchase upon the terms of the vendor and makes a deposit, but who neither signs a binding agreement to purchase upon such terms nor is produced before the vendor as a person ready and willing to enter into such a contract? It seems to us very clear that this question must be answered in the negative. The contract of the broker is to negotiate a sale; that is, to procure a valid contract to purchase, which can be enforced by the vendor if his title is perfect; or if he does not procure such contract, to bring the vendor and the proposed purchaser together, that the vendor may secure such a contract, unless he is willing to trust to an oral agreement.' The case of Hayden v. Grillo,3 is quoted to the same effect, wherein it is said: 'But the necessity of a written contract of sale may be rendered unnecessary if the agent bring the vendor and vendee together, and the latter is able and willing and offers to complete the contract provided the vendor will make the conveyance.' The same doctrine is declared in Mattingly v. Pennie,4 and it is held that: 'The readiness and willingness of a person to purchase the property can be shown only by an offer on his part to purchase; and unless he has actually entered into a contract binding him to purchase or has offered to the vendor and not merely to the broker to enter into such a contract he cannot be considered a purchaser.' "

1 (Cal. App.) 106 Pac. 244 (1909).

2 99 Cal. 352; 33 Pac. 1106.

335 Mo. App. 647.

4 105 Cal. 519; 39 Pac. 202; 45 Am. St. Rep. 87.

Sec. 148. Purchaser Not Ready And Willing (P. 156)

The proposed purchaser must be willing to purchase, and therefore the vendor, in resisting the broker's claim for commissions, may show that the proposed purchaser was not willing to purchase but told the vendor to let another proposed purchaser have the property.5

Sec. 149. Procuring Person Who Takes Option (P. 158)

A broker employed under the ordinary employment to find a purchaser, or to sell property is not entitled to compensation for procuring merely a customer to take an option, which has never been exercised.6

It has been suggested that while the mere procuring of one to take an option does not entitle the broker, to commissions if the optionee elects not to exercise the same, yet the broker is entitled to his commission if the option is actually exercised, or the optionee is willing to exercise it, but is prevented from so doing by the refusal of the owner to comply with his part of the agreement.7

There can be no doubt of the correctness of such proposition, for in such case the negotiation passes beyond the option stage and the broker has, in fact, produced a purchaser ready, willing, and able to purchase on the employer's terms.

Add to footnote 12:

Duncan v. Parker. 142 Pac. (Wash.) 657 (1914).

Add to footnote 16 (p. 159):

Worthington v. McGarry, 149 Ala. 251; 42 So. 988 (1907).