Opinion
No. 27322.
October 15, 1928.
1. BROKERS. Owners agreeing to deliver good and merchantable title are not liable for commission on failure to consummate sale because abstract was not furnished.
Provision of contract for sale of land on commission, that owners would deliver good and merchantable title, refers, not to an abstract thereof, but to character of title itself which owners were to convey to purchaser, and they were not liable for commission on failure of consummation of sale, for reason that they declined to furnish abstract of title.
2. VENDOR AND PURCHASER. Vendor need not furnish abstract, in absence of specific agreement.
In absence of specific agreement therefor, vendor is not required to furnish an abstract showing the condition of the title.
APPEAL from circuit court of Perry county; HON. R.S. HALL, Judge.
Haralson Hall, for appellant.
D.T. Currie, for appellees.
The appellees agreed, in writing, that the appellant, a real estate broker, might sell certain land owned by them for the sum of four thousand five hundred dollars, and that they would pay him a commission of five per cent. for so doing, and, further, "to deliver a good and merchantable title upon his finding a bona-fide purchaser to said property." The appellant, claiming to have produced a purchaser ready, willing, and able to pay four thousand five hundred dollars for the property, and that appellees then declined to sell it, brought this suit to collect from them the commission they agreed to pay him for producing such purchaser.
No tender of the purchase price was made to the appellees by the prospective purchaser, and, according to the evidence of the appellant, the trade was not consummated, for the reason that the appellees declined to furnish an abstract of title to the land. The court below directed the jury to return a verdict for the appellees, and there was a verdict and judgment accordingly.
The appellees' contract contains no promise to furnish an abstract of their title to the land, and the rule is:
"In the absence of a specific agreement therefor, the vendor is not required to furnish an abstract showing the condition of the title." 29 Cyc. 1516, 27 R.C.L. 238.
The promise of the appellees "to deliver a good and merchantable title" ex vi termini refers not to an abstract thereof, but to the character of the title itself which they were to convey to the purchaser.
Affirmed.