¶1(after stating the facts.) It is the duty of the broker to furnish a customer able and willing, to comply with the proposed sale before he is entitled to commission when the commission is conditioned on payment of price. Rapalje on Real Estate Brokers, § § 6i, 62.
¶2To be sure that his purchasers were responsible, Boysen stipulated in the contract with his agent that no part’ of the commission should be paid until one-third of the purchase price was paid; then one-half of the commission became due, and the remainder when one-half of the purchase price was paid. Now, Boysen could not, after having accepted a purchaser’s notes, defeat the broker's commission by surrendering those notes with or without compensation for such surrender unless the purchaser was not a responsible one who could not perform the contract; at least to the extent of Frink's interest in its fulfillment. If the purchaser was insolvent, no harm could be worked to Frink by surrendering worthless notes; nor could any harm be worked him if the purchaser was irresponsible and yet paid Boysen something (less than one-third the purchase price) for return of the notes, because Frink could not recover any commission until payment of one-third of the purchase price was made, nor all of his commission until payment of one-half the purchase price was made. On the other hand, Boysen could not defeat Frink’s commission by an unnecessary compromise. If the notes were good when taken, at least for so much as would earn Frink’s commission, or part of it, and Boysen could have enforced their collection, then he can not avoid Frink’s commission by such compromise.
¶3If the payment of the $1,000 for Hall’s notes was accepted in good faith as a .reimbursement of losses for Hall’s breach of contract, and the contract to the extent of Frink’s interest could not have been enforced, Frink has no case. If the $1,000 was not in good faith accepted as a settlement of an otherwise uncollectible debt, but was a good business deal or to the advantage of Boysen to accept it and hold the land instead of enforcing a valid sale, he must pay Frink'before casting up his profits on the venture.
¶4The instructions’ given by the court were correct, so far as they went, but they-ignored the duty of Frink to furnish a responsible purchaser, and ignored the evidence tending to prove the irresponsibility of Hall, and the diligence of Boysen to collect and his inability to do so, and the other matters discussed herein.
¶5Appellant’s evidence requires that the other phases of the question than those stated in the instructions be sent to the jury.
¶6Other questions are presented on both sides, and all have been considered, but none are of sufficient importance, from the view the court takes of these instructions, to require discussion.
¶7Judgment reversed, and cause remanded for new trial.