#### *W.*F. ELLER v. A. L. FLETCHER and Wife, MRS. MAY FLETCHER.

(Filed 16 April, 1947.)

1. Brokers § 11—

Under the general rule, a real estate broker is entitled to his stipulated commission, or compensation for his services, when, pursuant to agreement with the owner, he has procured a purchaser ready, able and willing to purchase the property upon the terms offered by the owner.

2. Brokers § 12—

A complaint alleging that plaintiff had procured a purchaser ready, able and willing to purchase the *locus in quo*upon the terms stipulated by defendants when they engaged plaintiff’s services to secure a purchaser, and that after .plaintiff so- advised defendants, defendants began to propose and require other conditions and changes in the terms of sale and finally withdrew the offer of sale, *is held*not subject to demurrer on the ground that the complaint disclosed that sale was not consummated, there being nothing in the complaint disclosing that consummation of sale was a condition precedent to right to commission.

*346Appeal by defendants from *Grady, Emergency Judge,*at September Civil Term, 1946, of Wake.

Affirmed.

Defendants’ demurrer to tbe complaint on tbe ground tbat it did not state facts sufficient to constitute a cause of action was overruled, and defendants excepted and appealed.

*Wilson & Biclcett and John W. Hinsdale for plaintiff, appellee.*

*A. J. Fletcher andF. T. Dupree, Jr., for defendants, appellants.*

Devin, J.

Tbe plaintiff instituted action to recover commission as real estate broker, alleged to bave been earned by procuring a responsible purchaser for defendants’ bouse and lot in accordance witb tbe terms of bis agreement witb tbe defendants. Ey demurrer tbe defendants raise tbe question of tbe sufficiency of tbe complaint to state a cause of action.

From an examination of the complaint it appears tbat plaintiff has alleged substantially tbat tbe defendants engaged bis services to secure a purchaser for their property at tbe purchase price of $27,500 cash, plaintiff’s commission to be $1,000; tbat pursuant to bis agreement witb defendants, tbe plaintiff secured Dr. R. N. Anderson as purchaser for the property at tbe price stated; tbat check for $500 of tbe purchase price was given plaintiff, tbe balance $27,000 to be paid in cash upon showing of title; tbat plaintiff so advised tbe defendants, but defendants began to propose and require other conditions than those contained in defendants’ original offer of sale as accepted by tbe purchaser, and changed and added to tbe terms, and after two months of endeavoring to meet tbe changed and varying conditions, tbe defendant finally withdrew tbe offer of sale.. It was alleged tbat plaintiff bad performed bis contract and procured a purchaser ready, able and willing to purchase tbe property on tbe terms offered and upon which tbe services of plaintiff bad been engaged.

Tbe view was presented in tbe argument here tbat tbe complaint was fatally defective in tbat it is alleged tbat tbe offer of sale was withdrawn and sale not completed. In support of this position defendants cite *Ins. Co. v. Disher,*225 N. C., 345, 34 S. E. (2d), 200. In tbat case it was held tbat tbe owner bad a right to withdraw tbe authority of tbe broker at any time before the broker “has fully earned bis commissions.” But here it is substantially alleged tbat tbe plaintiff bad fulfilled bis engagement and earned his commission, and tbat thereafter defendants withdrew tbe offer of sale and refused to carry tbe transaction through in accordance witb tbe terms of their offer as made and accepted by tbe purchaser. It was not alleged tbat tbe agreement to pay commission was conditioned upon an actual sale being completed, nor tbat it should be paid out of tbe sales price, as was tbe case in *Jones v. Realty Co.,*226 N. C., 303, 37 S. E. (2d), 906.

*347It was said in *White v. Pleasants,*225 N. C., 760, 36 S. E. (2d), 227, “Where tbe broker bas made a sale of tbe land or bas procured a purchaser who is ready, willing and able to buy on tbe terms set forth by tbe principal, tbe principal, although having tbe power, bas no legal right, without incurring liability for tbe wrongful termination, to revoke tbe broker’s agency to sell.” To tbe same effect is tbe bolding in *Lindsey v. Speight,*224 N. C., 453, 31 S. E. (2d), 371.

Under tbe general rule a real estate broker is entitled to bis stipulated commission, or compensation for bis services, when, pursuant to agreement with tbe owner, be bas procured a purchaser ready, able and willing to purchase tbe property upon tbe terms offered by tbe owner. *Crowell v. Parker,*171 N. C., 392, 88 S. E., 497; *House v. Abell,*182 N. C., 619 (628), 109 S. E., 877; *Harrison v. Brown,*222 N. C., 610, 24 S. E. (2d), 470; 8 Am. Jur., 1090; 2 Restatement Law of Agency, 1038-1041.

We think tbe plaintiff bas alleged sufficient facts in bis complaint to survive a demurrer, and that tbe judgment should be

Affirmed.