I concur in the judgment of affirmance but reach my conclusion only upon the grounds stated in the majority opinion prepared by Mr. Justice THOMAS, but also because of the following facts which I find reflected in the record.
As I read the record, the property out of which this controversy arose was formerly owned by one DeFoor and while it was so owned Moss had an exclusive listing on the property and, while it was so owned, Mr. Moss had some conversation with Mr. Condict in regard to the sale of the property at which time Mr. Condict was advised that Mr. Moss had such listing. Later the property was sold by DeFoor to Bearhead Groves, Inc., a corporation of which Mr. Burman was president and Moss was secretary. Later Mr. Condict contacted the purchasers to whom he later sold this property. After Mr. Condict contacted these purchasers he contacted Mr. DeFoor and found that the property had been sold to Bearhead Groves, Inc. Whereupon, he contacted Mr. Burman *Page 158 and procured a listing with the terms of the sale. When he asked for an abstract and some other data with reference to the property Mr. Burman directed him to Mr. Moss to get the abstract and information. The information was gotten by one of Mr. Condict's salesmen from Miss Newman, an employee in Mr. Moss' office.
I find nothing in the record to show that Condict had any knowledge or information that Moss was handling the property as a broker after it was purchased by the corporation of which he, Moss, was the Secretary. I find nothing in the record showing that Moss made any effort to put Condict on notice that he had an exclusive listing or was expecting any part of the commission which would flow from this sale from Bearhead Groves, Inc., to the purchasers produced by Condict.
It is my view that when the grove was sold by DeFoor to Bearhead Groves, Inc., the exclusive listing theretofore held by Moss was terminated.
It further appears to me that Condict procured his authority and terms of sale from the president to the owner, Bearhead Groves, Inc., and was not advised by anyone that Mr. Moss was in position to claim, or would claim, any part of the commission on said sale and that he did not have such information until he had closed the transaction and was paying over the purchase price for the property under the terms of the sale.
It follows that, in my view, the plaintiff entirely failed to produce proof to sustain a verdict and judgment in his favor.