Bruning v. Clesi 2 Pelt. 169

*170OPINION.

By his Honor John St. Haul.

The only question Involved in this csss is whether defendant has earned the commission agreed upon between plaintiff and himself, by procuring a promise of sale accompanied by earnest money, the purchaser having abandoned his deposit and refused to complete the sale, and plaintiff having claimed the forfeit.

She agreement as to commissions was as follows; " I Accept the above offer and agree to pay you for services rendered, SjS". Following this, the words "same being earned and payable when agreement to purchase is signed and offer accepted,* in the prlhted form, were stricken out ex industria.

As the leaving of this clause Unimpaired would have made it clear that the commission was earned in any event, it follows that the striking out of this clause was intended to avoid that very meaning.

Hence we are bound to conclude that the parties meant to oontxaot to aooording^the general principles prevailip^ .in such oases, vis, that the broker has not earned the agreed oopaission unless the sale goes through (provided however tb^f-^hé vendor be not at fault).

De Santos vs Taney, 13 An 151, Jordy vs Salmon Co, 121 La 457,

Loyacano vs Thompson, 4 Ct of App. 345,

Mc Williams vs Lyons, 5 Ct of App. 231,

Sonneman vs Cutter, 10 Ct of App 157,

Haight vs Marrero, 12 Ct of App 37o.

We are therefore of opinion that as far as the contract stipulation of three per cent on the purchase price is concerned, the defendant cannot recover.

At the same time v;e do not read those oases as meaning that in cases suph as this the broker is entitled to no compensation whatever and that^vondor is free to pocket the profits of the contraot resulting from the forfeiture of the earnest money, without paying the broker the value of hVls services,' whatever they may be.

*171Jany 1919.

On the contrary, the laborer la worthy, of his hire, ana In such cases we think the broker is entitled on "quantum meruit" to a portion of. the commission, having some correspondence to the profit inuring to the vendor.

If such compensation was not allowed in those cases, it was not because the court thought that nothing whatever was due, but beoause the claim was not made, and the court could not make ún allowance on quantum meruit when the party claimed on contract; but it is celar that the parties still had their action on quantum meruit, if they chose to persue it.

The case is the same here; defendant's reconventional demand is based on contract and he must fall; but in rejecting that claim we do not mean to deny him his right of action on a claim for quantum meruit, nnd we affirm the the judgment with that understanding,

Judgment Affirmed.

hew Orleans, La,

*172 On Rehearing.

3y/ his Honor John St. Paul.

A rehearing was granted herein principally for the purpose of correcting an error in the Decree. In a moment of inadvertence we overlooked the fact that the trial judge had allowed the reconventonal demand, whilst our reasons for judgment show that it was our intention to disallow it.

Eut having-heard the case reargued we stil-l adhere to the conclusions heretofore reached. Our decree must however le recast to aocord with the views expressed.

The judgment on the main demand is therefore affirmed; the judgment on the reco.nventional demandáis rejected, reserving however to the defendant whatever claim he may have against plaintiff on quantum meruit for services rendered; the defendant to pay costs of hoth courts.

New Orleans La, April 1919.