¶1 I respectfully dissent. This cases involves the construction of a special contract, and the rights of the parties to it should be determined by its provisions, and not under the general law of brokerage. The general rules that a broker earns his compensation when he presents a purchaser ready, willing, and able to buy at the price and on the terms specified, and that unless the broker warrants the financial ability of the purchaser the vendor by accepting him takes the risk of payment, have no application to cases where the contract is special and makes the payment of the commission contingent on the payment or collection of the purchase money. The contract expresses, as clearly as the English language can be made to express any idea, that Wheeler is to get the balance of his compensation, being the amount sued for herein, “out of deferred payments”, of the sale price. He has already received his per cent, of all of the cash payment, and this suit is to recover the balance referred to in the contract. By that writing he specially agreed that his commissions should be paid out of the purchase money; that he should have his proportionate part of the cash; and that he should be paid the balance out of the deferred payments as they were thereafter made by Langley. “Sale price,” as therein, used means purchase money or purchase price. “Purchase money” means “money paid for the land or the ■ debt created by the purchase.” Austin v. Underwood, 37 Ill. 438, 87 Am. Dec. 254; Eyster v. Hathaway, 50 Ill. 521, 99 Am. Dec. 537; Kneen v. Halin, 6 Idaho, 621, 59 Pac. 14. The majority opinion affirms the judgment in Wheeler’s favor for a pro rata share of a sum of money which Langley has never paid, and probably never will pay, and for which the appellants have not been able to recover a judgment. According to the above definition of purchase money, Wheeler has an interest only in the debt which Langley created and which is evidenced by the unpaid notes in the hands of the appellants. There is no ambiguity whatever in the contract, and therefore no room for construction or interpretation by the courts. Courts connot make contracts for parties and should, when the meaning is clear, enforce them as written and in the light of the surrounding circumstances. We are not left to speculate as to what the parties meant with reference to the subject-matter of this suit. According to the writing he was to get his proportion of the cash payment which has been received. The balance of his $25,000 he is to get out of deferred payments as they are made by the purchaser. Since the parties have designated the fund out of which and the condition upon which Wheeler’s balance is • to be paid, and by whom it is to be paid, in my opinion he could not recover until the conditions have been complied with. I-Ie has predicated the collection of his balance upon the' payment of the sale price by his proposed purchaser, and, having linked his chances of recovery with the seller’s probability of collecting the purchase money, he should stand or fall accordingly. I think the majority opinion in Roach v. McDonald, 187 Ala. 64, 65 South. 823, correctly states the law applicable to the instant case. We have recently held in Riley v. Palmer (Tex. Civ. App.) 250 *211 S. W. 762 in which the claim for commissions was based upon a special contract, making its payment contingent upon payment by the purchaser, that the broker could not-recover when the purchaser defaults and with few exceptions the courts have so held, not only in Texas, but in other jurisdictions. Kollman v. Brooks (Tex. Civ. App.) 155 S. W. 1007; Pryor v. Jolly, 91 Tex. 86, 40 S. W. 959; Laird v. Elliott (Tex. Civ. App.) 219 S. W. 499; Heath v. Huffhines (Tex. Civ. App.) 152 S. W. 176; Murray v. Rickard, 103 Va. 132, 48 S. E. 871; Prince v. Selby, S & L Co., 35 Cal. App. 684, 170 Pac. 1075; Edwards v. Baker, 39 Cal. App. 755, 180 Pac. 33; Murphy v. W. & W. Live Stock Co., 26 Wyo. 455, 187 Pac. 187, 189 Pac. 857; Lee v. Greenwood, A. Co., 123 Miss. 823, 86 South. 449; Weiner v. Infeld, 116 Misc. Rep. 323, 190 N. Y. Supp. 82; Baker v. Brewer’s Est. (Ind. App.) 133 N. E. 397; Coleman v. Edgar Lumber Co., 155 Ark. 275, 244 S. W. 41; Pratt v. Irwin (Mo. App.) 189 S. W. 398; Seymour v. St. Luke’s Hospital, 28 App. Div. 119, 50 N. Y. Supp. 989; Ash v. Oppman, 199 Ill. App. 573; Boysen v. Frink, 80 Ark. 254, 96 S. W. 1056; Van Norman v. Fitchette, 100 Minn. 145, 110 N. W. 851; Inge v. McCreery, 60 App. Div. 557, 69 N. Y. Supp. 1052.
¶2 I find myself unable to agree with the majority in holding that, when the appellants bid $100,000 at the foreclosure sale and the land was reconveyed to them, it is tantamount to the receipt by them of $100,000 of the purchase money. It is true that the lease became Langley’s property when it was assigned to him, but it was subject to the equitable lien in appellants’ favor for the purpose of indemnifying them in the event he defaulted in the payment of purchase money. By reason of this default they were forced to sue and recover a judgment in rem, and through that proceeding they have been reinvested with the title. They have no personal judgment against Langley. If they had, Wheeler would be entitled to his pro rata share of the proceeds of any part of such judgment which could be collected'. While they have the land, land is not purchase money, and the appellee’s commissions are payable out of purchase money, and not out of land; yet Wheeler has been decreed a recovery against appellants for his balance due and payable, according to his solemn contract, only out of purchase money, when none has been paid. Suppose Langley, in the beginning had paid only $10 cash and then defaulted for the remainder of the $425,000, total consideration, and left the state so that process could .not have been served upon him, as it seems he has done, and the appellants had sued and by a judgment in rem a sale thereunder repossessed the property? And suppose, further, that the appellants had bought in the land by bidding the full contract price? Would there be any equity in permitting Wheeler to recover $25,000 under such circumstances? The appellants would not have been benefited by his services. On the contrary, they would have been and are mulcted in the necessary costs and Expenses of the suit required to reinvest them with the title. For the same reason I think he should not be permitted to recover in this ease. Wheeler undertook to procure a buyer who would pay the purchase money and hazarded the collection of his commissions upon performance by his purchaser. He has received his part of all that his purchaser paid. He has his pound of flesh and his contingent interest in the deferred payments still due from Langley.. As parties bind themselves so should they be bound. Appellants put their land into the venture. As against their land appellee put "in his services as a broker, and the wording of the contract making the payment of commissions contingent on the payment of the purchase money is convincing evidence of the fact that they .considered it to some extent a hazard, and intended equally to abide the issue; In any event, Wheeler should not recover more than his pro rata share of the fair market value of the land at the time of Langley’s default. Since this transaction grows out of an oil lease of uncertain value, and there is no pleading or evidence to show what it is really worth, I think the judgment should be reversed and the cause remanded.