¶1Action to recover a commission claimed to be clue plaintiff as a real estate broker.
¶2Defendant entered into a written agreement, under seal, with one Edward R. Tramonti, under the terms of which the parties severally agreed to convey to each other certain real estate under certain conditions contained in said agreement. In the sixth para-raph of said agreement the following appears:
“It is understood that Maurice II. Kessler will receive a brokerage fee of 3% from the said Bishop at the time of the delivery of the deed.”
¶3There seems to be no contradictory testimony in the record as to the fact that Bishop agreed to pay a 3% commission to Kessler and further agreed to make the real estate trade agreed upon, and that he refused to carry out said agreement.
¶4There is pending in our Court a hill in equity brought by Tramonti against Bishop asking for specific performance of said agreement, being the case of Edward R. Tramonti vs. Charles F. Bishop et als., Equity No. 9854.
¶5The plaintiff has performed his part of the contract in bringing the parties together and leading to an agreement.
¶6One issue in the present case is whe'.her the delivery of a deed is a condition precedent to the payment of a brokerage commission. Bishop refuses to deliver the deed upon the ground that Tramonti deceived him relative to certain representations made as to the property agreed to be delivered.
¶7There has been no tender of delivery of a deed on the part of Tramonti except as to his willingness and ability to do so, and no testimony as to any tender on the part of Tramonti of the .$2000 to be paid to Bishop upon delivery of a deed.
¶8The Court has considered the case of Cannon vs. Staples, 46 R. I. 300, where the broker’s commission was to be paid upon the passing of the deed. The defendant testator died before a deed was passed and it was urged in de-fence that the estate was not bound to pay the commission as the contract was never consummated. The Court held the broker had done all he was required to do and was entitled to a commission. The same doctrine was sustained in Tarbell vs. Bomes, 48 R. I. 86.
¶9In both these cases it was admitted, however, that specific performance of the contract between the buyer and seller could be enforced.
¶10The case of Tramonti vs. Bishop, Eq. 9854 was submitted to this Court upon bill, answer and proof. The hill was dismissed and a final decree entered March 5. 1930, from which no appeal has been taken.
¶11The Court has examined the record of testimony given in the present case as to whether the present plaintiff (Kessler) appeared to be involved in any of the alleged false representations made by Tramonti to Bishop.
¶12He (Kessler) was present when the agreement in writing was drawn up. The statements by Tramonti to Bishop were made by Tramonti alone. There is nothing on the record to show that Kessler took any part in this conversation, or that at any time during the negotiations preceding the execution of the agreement, he had made any false representations to Bishop, or that he had any personal knowledge as to the conditions surrounding the premises.
¶13The condition of the agreement under which the commission was fixed is that same is payable upon delivery of the deed, meaning, it is to be presumed, the deed from Tramonti to Bishop, and from Bishop to Tramonti.
¶14The agreement lias been declared invalid.
¶15The commission being fixed as to its terms by the agreement, the decision must be for defendant.
¶16Decision for defendant.