The opinion
KEITH, Justice
(concurring).
While I join in the affirmation of the judgment of the lower court in its entirety, *648 I place the affirmation as to Edgar Jackson and Blanche Taylor on these additional and slightly different grounds.
Jackson and his broker Blanche Taylor, seeking to recover a commission, were confronted with the rule of law so well stated many years ago by Chief Justice Phillips in Goodwin v. Gunter, 109 Tex. 56 , 185 S.W. 295, 296 (1916):
“It is a general doctrine that in order for a broker to be entitled to commissions under a contract stipulating for their payment in the event of his sale of given property upon stated terms, a purchaser must have been produced through his efforts, ready, able and willing to buy the property upon the contract terms; otherwise the contract is not fulfilled upon the broker’s part and the commissions are therefore not earned.” (emphasis supplied)
See also, Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635 , 253 S.W.2d 422, 425 (1952), wherein Justice Sharp quoted the foregoing language in the body of the opinion. The rule there announced has continuing validity. Maberry v. Julian, 479 S.W.2d 770, 773 (Tex.Civ.App., Dallas, 1972, error ref. n.r.e.).
Conceding the fact that William M. Day, the only “purchaser” produced by Jackson or Taylor, was able to consummate the purchase, he was neither ready nor willing to do so. Only the District Court of Travis County, 167th Judicial District of Texas, aided by the Sheriff of Travis County executing an order of sale based on a final judgment, made Mr. Day into a “ready”, but possibly still unwilling purchaser. The sheriff’s efforts, and not those of Jackson and Taylor, changed Day’s status from that of a prospective purchaser into the owner of Mrs. Williams’ house. It cost Mrs. Williams more than five thousand dollars in attorneys’ fees to bring about this change in Day’s attitude toward her property. I cannot accept the argument that Jackson and Taylor satisfied the condition precedent to a recovery of commissions under Chief Justice Phillips’ holding. Day was not a purchaser “ready, able and willing to buy the property upon the contract terms.”
Next, Justice Sharp, in Air Conditioning, Inc. v. Harrison-Wilson-Pearson, supra, quoted this language from 7 Tex.Jur. § 82, p. 479 (1930) [some of which now appears in 9 Tex.Jur.2d, Brokers, § 57, p. 818 (1969)]:
“ ‘Although the broker may have been the person who brought the property to the attention of the buyer, or introduced the buyer to the owner, thereby initiating negotiations between them, yet he is not entitled to recover commission where it further appears that, after he had made an unsuccessful effort to induce the buyer to purchase the property and had ceased his efforts to accomplish that result, all without fault on the part of the owner, the sale was then made as the result of independent negotiations directly between the owner and the buyer, or through the medium of some other broker.’ See Tex.Jur.Supp., p. 582, § 82.”
Jackson and Taylor, without ascertaining the true facts, did all they could to relieve Day of his obligations to purchase Mrs. Williams’ property. Jackson marked the contract void; Mrs. Taylor gave Day back his check while trying to sell him another house.
I now paraphrase the textbook language adopted by Justice Sharp so as to make it applicable to the case at bar:
Mrs. Taylor “made an unsuccessful effort to induce the buyer [Day] to purchase the property and had ceased his [her] efforts to accomplish that result [by trying to sell Day another house], all without fault on the part of the owner [Mrs. Williams].”
Later, Mrs. Williams proceeded to act and “the sale was then made as the result of independent negotiations [in the courthouse in an adversary proceeding] directly between the owner and the buyer.”
*649 No plaintiff having shown himself entitled to recover all or any part of the commission, the trial court properly entered judgment for Mrs. Williams and I join in the affirmation thereof.