The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 64

272 FEDERAL REPORTER

sale which was afterwards avoided, and that the commission which
had been paid could not be retained by the broker. The Vice Chan-
cellor said:
"An invalid sale is practically no sale, * * * and she [the broker]
cannot retain an advantage resulting from her unavailing effort."
In Fox v. Ryan, 240 Ill. 391, 397, 88 N. E. 974, the court declares
that when a broker produces a buyer, and the seller accepts him and
executes an enforceable contract of sale, it is held to be a determina-
tion by him of the purchaser's ability to perform his contract, and the
seller cannot defeat the broker's commissions on the ground that the
purchaser is not able to buy the property. And see Wilson v. Mason,
158 Ill. 304, 311, 42 N. E. 134, 49 Am. St. Rep. 162. And in Mitchell
v. Weddington (decided by the Kentucky Court of Appeals) 122 S.
W. 802 (1909),1 the broker was employed to purchase the coal and
minerals on, a certain farm. He obtained from the owners of the farm
a contract, signed by each of the six owners, in which they declared
that they had sold to the defendant all the coal and minerals in, on,
and under their lands at the agreed price. It appeared that one of the
owners who signed the contract was a minor. The defendant, the
vendee, refused to complete the purchase. The broker brought suit
against him for his commissions. The court below instructed the jury
to find for defendant. The Court of Appeals affirmed the judg-
ment, saying:
"The cases cited by appellant are not applicable to the facts of this case.
In those cases the brokers had done all that they contracted to do. Here the
appellant did not do all that he contracted to do, because he failed to pur-
chase the land by a contract that was binding on all the parties signing it."
The general rule in England and the United States rejects the con-
tinental rule, and holds that the capacity of a party to contract is de-
termined by the law of the place where the contract is made. In the
above case by the lex loci contractus the contract was not binding, be-
cause of the infant's right to disaffirm.
In Goodnough v. Kinney, 205 Mass. 203, 91 N. E. 295, it is said:
"It is settled that, where the broker secures a customer who is both willing
and financially able to purchase property upon the terms authorized by the
principal, who has been informed of the completion of the negotiations, a
commission has been earned, even if a sale is not completed because the
parties never enter into a binding agreement, or the owner refuses or neglects
to make a conveyance."
[9] In Kalley v. Baker, 132 N. Y. 1, 29 N. E. 1091, 28 Am. St. Rep.
542, a broker was employed by the defendant to effect a sale of his
farm. The broker produced a customer, and negotiations began which
resulted in an agreement for an exchange of the farm for an apart-
ment house owned by the customer the broker produced. The written
contract provided that the two properties were to be free from all
incumbrances, except the apartment house was to be subject to two
mortgages. When it came to the exchange of deeds, the person who
employed the broker found objections to the title offered by the cus-
1 The case is not in the Kentucky Reports.