¶1The verbal contract entered into by the plaintiff in error, the owner of the land, and the defendant in error, doing business as J. W. Haley & Co., the broker, was afterwards modified and qualified by a written agreement expressed in a proposal to purchase and an acceptance of the same as follows:
“Cincinnati, O., Oct. 15, 1900.
“I, the undersigned, hereby agree to buy through J. W. Haley & Co., Mr. S. S. Godley’s home on Carroll street, for the sum of ($2,300) twenty-three hundred dollars cash, title to be free and unincumbered.
“(Signed) Geo. D. Hadley.”
“October, 16, 1900.
“I the undersigned, hereby agree to accept the above offer and pay J. W. Haley & Co. 2 per cent commission, $46, for services rendered.
“(Signed) S. S. Godley.”
¶2By this agreement, the plaintiff in error agrees to pay out not for services thereafter to be rendered, but for services already rendered which are expressed in the proposal. In the absence of fraud or mistake, neither of which are alleged, it must be assumed that the plaintiff in error was satisfied that the purchaser produced was ready and willing to complete the purchase, and that he released the broker from any responsibility for a failure on the part of Hadley to carry out the contract.
¶3*607The evidence shows that Godley was informed that Hadley wished the conveyance bo be made to his wife, and whether the purchase money was paid by Hadley or his wife or both seems to us immaterial if Hadley had caused it to be paid.
¶4The failure to carry out the agreement resulted not from a want of ability on the part of the purchaser to pay the price agreed upon but because the title to the land was questioned.
¶5Judgment affirmed.