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The opinion of the Court was delivered by

Mr. Justice Fraser.

The plaintiff brought his action against the defendants, Roach & Kirk, as copartners, to recover $175, which he alleged was due him upon an uncompleted contract of sale *110 of a lot of land in Rock Hill, in this State. The plaintiff alleged that he had made a- contract to buy -the house and lot from one E. H. Johnson; that the contract was made through the defendants Roach & Kirk; that he paid to the said Roach & Kirk, as agents and brokers of Johnson, the owner, the sum of $350 to bind the bargain; that the plaintiff and Johnson agreed to rescind the contract, but that the defendants refused to return the sum of $175; that the plaintiff is entitled to a return of this sum and demands judgment for the same.

The defendants in their answer set up that they were duly authorized under a written contract to make the sale; that plaintiff, E. H. Johnson, and the defendant Roach (for Roach & Kirk) entered into a written agreement in which it was mutually agreed that the sum of $350 was forfeited by the failure of the plaintiff to comply with his contract; that the sum of $175 was due to defendants, under the tripartite contract, for the sale of the land. The defendants put in also a general denial.

The following is the contract relied upon by appellant:

Sales Contract of Real Estate.

Ross F. Roach, Broker.

“$3,500.00 Rock Hill, S. C., 3-22-1920.”

“Articles of agreement between Ross F. Roach, for E. H. Johnson, of Rock Hill, S. C., and J. Harry Foster, of Rock Hill, S. C. Ross. F. Roach agrees to sell and J. Harry Foster agrees to buy the following described property: One five-room cottage on the north side of East Black street, now occupied by Thackston — for the sum of thirty-five hundred dollars for sound and unincumbered titles for three hundred and fifty dollars of purchase price is acknowledged paid to bind the obligation until sound and unincumbered titles can be furnished by the owner by or before April 22, 1920, when the remainder is to be *111 paid as follows: Cash when papers are delivered. Purchaser is to get possession in thirty days, or money back.

“Should any defect appear in the titles that cannot be corrected, the amount paid is to be promptly refunded to the buyer by Ross F. Roach, broker. The buyer is to have the privilege of examining the titles before completing payment. Taxes are to be paid by the owner up to the date of transfer of papers. It is understood by all parties interested that Ross F. Roach is to be responsible only for the amount in his hands, but is to use his best efforts to see that the contract is fulfilled by both buyer and seller. The amount paid to bind the obligation is to be forfeited, provided the buyer fails to comply. ' Said’ amount of forfeit is to be equally divided between the owner of the property and the broker. The said E. H. Johnson will give possession if Thackston agrees to vacate the house.

Witness: [Signed]

“A. R. White, for Ross F. Roach, Broker.

“E. S. Kirk, for J. Harry Foster, Buyer.

for E. H. Johnson, Owner.”

The plaintiff demurred to the answer, on the ground that it did not state a legal defense. (Let the answer and circuit decree be reported).. The demurrer was overruled on several grounds, and the plaintiff appealed. The demurrer was overruled because the plaintiff alleged that the contract had been rescinded, and the general denial put that fact in issue. It appears to this Court that the real question is before the Court, and it must at last be decided on the papers now before the Court, and it is not well -to send the case back for further expensive litigation that cannot affect the final result. The rescission being eliminated by the general denial, we have a complaint that admits that the plaintiff and the seller ha,d a contract of sale. The answer sets up a contract as the contract referred to. At this *112 stage we must assume that the contract set up in the answer is the true contract.

The defendants have in their possession $175, which they claim the right to hold under that contract and the allegations of the answer. Let it be assumed that the money paid is in the nature of liquidated damages. The defendants must show that the seller and his agents, the respondents, are in a position to demand of the buyer that he shall fulfill his contract. The contract says: “Purchaser is to get possession- in thirty days or money back.” It says further: “The said E. H. Johnson will give possession if Thackson agrees to vacate the house.” The answer does not allege that the seller was in a position to- tender possession within 30 days, or up to the time of the service of the answer. The contract further provides that Roach “is to use his best efforts to see that the contract is fulfilled by both buyer and seller.” There is no allegation of any effort on the part of the respondents to secure a fulfillment of the contract by either party. Roach was the admitted agent of the seller. The answer so states and sets up his written contract. It is true this contract provides for a division of the fund between the principal and agent, but the buyer was not concerned in that division, whether the contract was fulfilled or not. The only clause in the contract that connected the buyer with the agent of the seller was that Roach was “to use his best efforts to see that the contract was fulfilled by both buyer and seller.” The answer sets up no effort to accomplish anything for the buyer.

The respondents have their contract with their principal, the seller, and their remedy, if any, is against their principal.

The order appealed from is reversed. This does not preclude an amendment if the Circuit Court sees fit to allow it.

*113 Mr. Chief Justice Gary and Mr. Justice Watts concur. Mr. Justice Cothran,

(dissenting) : I agree fully with the very clear and convincing decree of the Circuit Judge and think that it should be affirmed.

The controversy has arisen over the terms of a written contract for the sale by one E. H. Johnson through his agents, Roach & Kirk, of a house and lot to the plaintiff. The agreed price was $3,500, payable $350 cash, and the remainder at stated times. The contract provides that, if the buyer (plaintiff) failed to comply -with the terms óf the contract, the cash payment of $350, “the amout paid to bind the obligation,” should be forfeited and equally divided between the owner of the property (Johnson) and the broker (Roach), acting apparently for his firm (Roach & Kirk).

This contract was signed by the three parties interested, Foster, Roach, and Johnson, the buyer, the broker, and the seller, and each of them was of course bound by the terms thereof, appropriate to their several obligations.

The complaint alleges that subsequently to the making of the contract Foster, the buyer, and Johnson, the seller, by mutual agreement, rescinded the contract of sale, Johnson accepting $175, one-half of the initial cash payment of $350, on account of five months’ rent of the premises. It does not allege, and we must assume that such was not the fact, that the broker was consulted as to this rescission or that his interest in the so-called forfeit was considered at all. The plaintiff appears to have been careful in concluding the interest of Johnson therein, but indifferent to that of the brokers, which was identical with that of Johnson, and expressly made so by the signature of the plaintiff to the tripartite agreement.

The defendants in their answer deny the allegation of the complaint that there had been a rescission of the con *114 tract as between the plaintiff and Johnson, and claim the benefit of the provision in the contract that, if the plaintiff failed to comply with his contract, they should be entitled to one-half of the initial payment agreed to be forfeited.

It does not make a particle of difference how it came about that the plaintiff failed and refused to comply with his contract, if, as a matter of fact, admitted by the answer, he did so fail and refuse. It might have occurred, and doubtless it did occur, as the plaintiff declares, by a rescission of the contract by agreement between him and Johnson; but the defendants were not parties to that agreement, and their rights could not be bartered away by the plaintiff and Johnson, both of whom by contract fixed what those rights were. Or it might have occurred,- if the defendant’s denial of a rescission be established, by the failure and refusal of the plaintiff to comply. In either event, the defendants- are entitled to what the contract gives them.

It must be assumed that the'brokers gave value received for their services; at least the plaintiff is in no position to dispute that fact after having agreed to the measure of their compensation and how it was to be paid by signing the contract in the event of his failure to comply.

The plaintiff settled with Johnson by applying his half of the $350 to the rent of the premises for five- months. Johnson received therefor no more than the rent, nothing under the contract. The plaintiff would settle with the brokers for the same $175 with which Johnson was satisfied. If it required a new contract to settle with Johnson, why did it not require a new contract to settle with the brokers, who had an equal interest, by the plaintiff’s express agreement, in the $350?

In any aspect of the case, the -order overruling the demurrer was right, and should be sustained.

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