#### Ahearn, Respondent, vs. Borngesser, Appellant.

*October 31*

November *19, 1912.*

*Real-estate brokers: Commissions: Securing purchaser able to pay cash: Evidence: Competency: "Weight and sufficiency.*

In an action by a real-estate broker to recover a commission for securing a purchaser for defendant’s land, testimony of the proposed purchaser that he was ready, able, and willing to buy the land and to pay the entire purchase price in cash, was not incompetent on the ground that he was testifying to a conclusion and not to a fact; and such testimony, especially when uncon-troverted and not impeached by anything elicited on cross-examination, was sufficient to support a verdict in accordance therewith.

*195Appeal from a judgment of tbe circuit court for Milwaukee county: E. 0. Esghweileb, Circuit Judge.

*Affirmed.*

Tbe complaint in tbis action alleged tbat plaintiff entered into an agreement with tbe defendant whereby be was to secure a purchaser for certain real estate owned by tbe defendant and tbat be was to receive for bis services all in excess of $48,000 paid for tbe property; tbat be found a purchaser who was able, ready, and willing to pay $50,000; tbat tbe parties were brought together and that tbe proposed terms of tbe purchaser were accepted by tbe defendant, but tbat defendant failed and neglected to consummate tbe sale and afterwards sold and conveyed tbe property to another person. Tbe answer put in issue all tbe allegations of tbe complaint. Tbe jury returned a verdict in favor of tbe plaintiff, 'and from a judgment entered on such verdict tbe defendant appeals.

Eor the appellant there were briefs by *Beukema &■*Lemke, attorneys, and *Wm. H. Bennett,*of counsel, and oral argument by *Otto A. Lemke.*

They contended, *inter alia,*tbat when tbe agreement is to sell for cash, evidence as to ability is not sufficient unless satisfactory proof is made (1) either tbat tbe purchaser has ready cash in band, (2) or tbat tbe purchaser has entered into contractual relations with a person who has tbe cash to furnish at tbe proper time. *Harmon v. Fwright,*107 Mo. App. 560, 81 S.'W. 1180; *Neiderlamder v. Starr,*50 Kan. 766, 32 Pac. 359; *Dent v. Powell,*93 Iowa; 711, 61 N. W. 1043; *Hammond v. Mitchell,*61 Ill. App. 144; *McGa/uock v. WoodUef,*20 How. 221; *Mattingly ¶. Pennie,*105 Cal. 514,. 39 Pac. 200; *McOune v. Badger,*126 Wis. 186, 105 N. W. 667; *McOabe v. Jones,*141 Wis. 540, 541, 124 N. W. 486. The financial ability of tbe purchaser will not be presumed,, but must be proven by tbe broker. *Oalbum v. Seymour,*29 Colo. 292, 76 Pac. 1058, 1059; *Tracy v. Fobes,*132 Iowa, 250, 109 N. W. 772; *Wenks v. Hazard*(Iowa) 121 N. W. 1058; *Watters v. Dancey,*23 S. Dak. 481, 122 N. W. 430,. 432; *Forrester v. Price,*6 Mise. 308, 26 N. Y. Supp. 799; *196
      *Young v. Ruhwedel,*119 Mo. App. 231, 96 S. W. 228; *Wei-■sels-Gerhcurt R. E. Go. v. Epstein,*157 Mo. App. 101, 137 S. W. 326; *Shww v. Chiles,*9 Ga. App. 460, 71 S. E. 745; *Schoenmamn v. Whitt,*136 Wis. 332, 117 N. W. 851.

*Thos. H. Dorr,*for tbe respondent.

EaRNBS, T.

Under tbe terms of bis contract tbe agent was obliged to secure a purchaser wbo was able to pay casb. Tbe agent produced a prospective purchaser who expressed a willingness to buy tbe property and pay casb therefor, but stated that be would prefer to pay part of tbe purchase price in casb and secure time on tbe remainder. Tbe evidence tended to •show that tbe defendant was willing to make tbe concessions requested by tbe purchaser in reference to tbe manner of payment, but that be stated that bis sister owned a half interest in tbe property and that be could not consent to sell on time until be bad consulted with her, and that be would do so 'and advise tbe purchaser whether it would be necessary to pay tbe entire purchase price in casb. He failed to inform the purchaser of tbe attitude of bis sister and within a very short time sold tbe property to another party.

Tbe various contentions made by tbe appellant are really directed to two propositions. First, tbe evidence was not sufficient to warrant tbe jury in finding that tbe plaintiff bad produced a purchaser wbo was ready, able, and willing to buy tbe premises in question; and second, that if there was any evidence in tbe case tending to support tbe conclusion of tbe jury, such evidence was improperly admitted.

Tbe prospective purchaser testified that be was ready, able, and willing to buy tbe premises and pay casb therefor, if tbe defendant insisted that tbe entire purchase price be paid in casb. There is nothing substantial in tbe record to contradict this testimony. Tbe jury was at perfect liberty to believe it and evidently did believe it, and its conclusion cannot be set aside as not supported by tbe evidence.

*197However, if this evidence was incompetent, then there was-no other evidence in the case tending to show that the proposed purchaser was able to consummate the deal, and the judgment should he reversed. *Donohue v. Padden,*93 Wis. 20, 66 N. W. 804; *Arnold v. Nat. Bank,*126 Wis. 362, 105 N. W. 828; *Riemer, v. Rice,*88 Wis. 16, 59 N. W. 450; *McCabe v. Jones,*141 Wis. 540, 124 N. W. 486. The objection to the competency of the evidence is that the witness testified to a conclusion rather than to a fact. The question as to whether or not the purchaser was able to pay in cash was a question of fact. It was or should have been a fact within the knowledge' of the witness. We see no more objection to his testifying to it than there would be to a witness testifying to his age or the state of his health or his financial worth, if these matters were relevant subjects of inquiry. The defendant had ample opportunity on cross-examination to make inquiry as to the amount of property owned by the witness, the character of the property, the amount of his indebtedness, and the extent of his ability to secure credit, as well as any other fact which would tend to break down or impeach the statement made on direct examination. For aught that appears here, the proposed purchaser might have drawn his check on the bank for the entire purchase price and have had it honored. We see no objection to permitting a party who has made an offer for property to testify that he was able to pay for it.

*By the Gowrt.*— Judgment affirmed.