ST. SURE, J.,
Dissenting.—I dissent for the reason that
the evidence wholly fails to show that the plaintiff produced a purchaser ready, willing, and able to buy upon the terms
[308]
proposed by the seller. All three of these elements must exist in the customer, in order to entitle the broker to his commission, and it is not sufficient that the customer is ready and willing, but he must also have the ability to carry out the purchase; he is not required to have legal tender in hand with which to pay, unless the price is required to be paid in cash, in which ease the fact that he has property out of which the required payment may be made is not sufficient (9 Cor. Jur., sec. 88, p. 599). A proposed purchaser is not able, when he is depending upon third parties who are in no way bound to furnish the funds, to make the purchase. The contract required that the purchaser pay $20,000 in cash The purchaser testified that he was financially able to pay. Asked to explain, he said that he had arranged with Mr. De Lancey for a loan, “that was to be known as a second mortgage of $12,000.” “I was securing that money from his (De Lancey’s) wife—the balance of the money I had in the bank, and negotiable papers, negotiable notes.” By the greatest liberality it might be inferred from such testimony that the purchaser had $10,000 cash in hand, although had he undertaken to realize upon his “negotiable” securities it is probable that he would have been disappointed. To admit that he had $10,000 cash in hand is but to say there was a showing of only partial financial ability on his part, as he was required to meet a cash payment of $20,000; the remaining $12,000 he had “arranged” to borrow on a second mortgage on the very property he wished to purchase. There was no showing whatever as to the ability of Mrs. De Lancey to loan the money. 'The law will not presume the existence of the purchaser’s financial ability, the burden is upon the broker to establish that fact; or, as is said in
Merzoian
v.
Kludjian,
183 Cal. 422 [191 Pac. 673], “it was a part of plaintiff’s case in chief to show that the purchaser was ready, able and willing to make the purchase, and this could be done by proof either that he had funds in hand, in whole or in part, or that he commanded resources upon which he could obtain the requisite credit.” Even if Mrs. De Lancey’s financial ability could be presumed, there was no showing that she was “bound by contract”
(Mattingly
v.
Pennie,
105 Cal. 514, 522 [45 Am. St. Rep. 87, 39 Pac. 200]) to loan the money on a second mortgage; or that she was “legally bound to loan him the money”
(Tashjian
[309]
v.
Krikorian,
55 Cal. App. 160, 164 [202 Pac. 956]); or that the purchaser had anything more than her “unenforceable promise”
(Merzoian
v.
Kludjian, supra)
of a loan of $12,000. The purchaser’s statement that he was financially able was but the expression of an opinion on his part that with the amount of money he had in the bank (which is not shown), together with the uncertain amount of cash he could realize upon his negotiable securities from unknown persons, together also with the sum of $12,000 he expected to secure from Mrs. De Lancey on a second mortgage on the property he proposed to buy, he was prepared to complete the purchase. When it came to a completion of the transaction the purchaser might have found that he was unable in whole or in part to borrow on, or sell, his negotiable securities, that Mrs. De Lancey had changed her mind about advancing $12,000, or for some other reason the money needed for the cash payment would not be procurable within a reasonable time or at all.. It seems to me that it would have been a simple matter to show by competent evidence, if such were the case, that the purchaser had $10,000 cash in hand, or its equivalent; that Mrs. De Lancey was financially able to loan the purchaser $12,000 and that he had an enforceable promise from her to do so. The burden was upon plaintiff to do this and he failed. It is said in the majority opinion “that the defendant never raised any objection as to the ability of the purchaser to perform.” A defendant is not required to disprove a case until one is made against him. I do not think that the evidence shows that the defendant either capriciously or arbitrarily refused to enter into a contract, as suggested in the, main opinion, but even so, I believe that the plaintiff has failed to measure up to the requirement of the law that he prove that he found a purchaser who was ready, willing, and able to complete the purchase upon the terms proposed. The evidence is insufficient because it leaves too much to conjecture and speculation; it is too indefinite. This view is supported by
McGavock
v.
Woodlief,
61 U. S. 221, 227 [15 L. Ed. 884, see, also, Rose’s U. S. Notes];
Mattingly
v.
Pennie,
105 Cal. 514, 522 [45 Am. St. Rep. 87, 39 Pac. 200];
Cameron
v.
Ayers,
175 Cal. 662, 665 [166 Pac. 801];
Merzoian
v.
Kludjian,
183 Cal. 422 [191 Pac. 673];
McCune
v.
Badger,
126 Wis. 186 [105 N. W. 667];
McCabe
v.
Jones,
141 Wis. 540
[310]
[124 N. W.
486]; Tashjian
v.
Krikorian,
55 Cal. App. 160, 164 [202 Pac. 956];
Birnbaum
v.
Unger,
135 N. Y. Supp. 1;
Holliday
v.
Roxbury Distilling Co.,
130 App. Div. 654 [115 N. Y. Supp. 383].
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 18, 1924.