concurring.
*241The controlling question in this case is the construction of the contract set out in the opinion. It was construed in the court below as giving to defendant in error the exclusive right of sale of the property described for the period stated and judgment upon the verdict for the amount claimed was entered accordingly.
There is a recognized distinction between the meaning of the terms “exclusive sale” or “exclusive right to sell” and “exclusive agency” to sell real estate. Harris v. McPherson (Conn.) 115 Atl. Rep. 723. The contract of an “exclusive agency” to sell does not obligate the owner to pay a commission where he himself sells to a purchaser not procured by the agent. Smith v. Preiss, 117 Minn. 392, 136 N. W. Rep. 7; Roth v. Thomson, 40 Cal. App. 208, 180 Pac. Rep. 656. Even in a case in which the agent was given ‘ ‘ exclusive sale’’ of the property, it was held that the owner was not inhibited from selling, during the life of the contract, to a purchaser not procured by the agent. Roberts v. Harrington, 168 Wis. 217, 169 N. W. Rep. 603. But upon this point there is conflict in the authorities, some courts holding to the contrary. Murphy v. Sawyer & Warford, 152 Ky. App. 645, 153 S. W. Rep. 991; Hayes v. Clark, 95 Conn. 510, 111 Atl. Rep. 781.
In some jurisdictions it is held that a contract which stipulates a definite time within which a sale may be made implies an exclusive right to sell and that the owner cannot himself make a sale of the property within the time agreed without becoming liable to the agent for breach of the contract. Blumenthal & Co. v. Bridges, 91 Ark. 212, 120 S. W. Rep. 974, 24 L. R. A. (N. S.) 279. In others it is held that authority to sell within a specified time, or at any time before notice of withdrawal of authority to sell, does not give to the' agent the “exclusive agency” or the *242exclusive authority to sell for the period agreed and that the owner may himself, or through some other agency, effect a sale within such time without becoming liable to the agent for commissions. Hammond v. Mau, 60 Wash. 204, 124 Pac. Rep. 377, 40 L. R. A. (N. S.) 1142; Hennings v. Parsons, 108 Va. 1, 61 S. E. Rep. 866.
Under the terms of the contract in this case the agent was to “assume the position of manager of” the business of the owner in connection with his “present engagements elsewhere.” For this service he was to receive a salary of $250 per month, a sum presumably commensurate with the service to be rendered. It is true that the “moving consideration” was not only the management of the business of the owner, but “the disposal of all the company’s holdings,” with certain exceptions, consisting of large acreages of land mentioned in the contract, and it was stipulated that if such lands were not within the two-year period stated disposed of in full no commission was to be paid and the salary mentioned was to be full compensation. But nowhere is it provided in the contract that the owner, during such period, was precluded, without becoming liable to the agent for commissions, from making sale of the property, and when it is considered that the agent bound himself to do nothing in the way'of making an effort to effect a sale, or to devote any time to or incur any expense in the effort, it is difficult to find in the contract any consideration moving the owner to surrender the right which it possessed, in the absence of.a valid contract to the contrary, of itself making sale of its own property without becoming liable to the agent for commissions.
It is argued that because the owner did not reserve to itself in the contract the right to sell the property during the life of the contract, it should be construed as inhibiting the *243owner from doing so and as conferring upon the agent the exclusive “disposal,” or what amounts to the same thing, the right to demand and recover the amount of the commissions stated in ease of a sale by any one during such period. But this is equivelent to saying that because it did not expressly reserve it, the owner will be presumed to have granted a valuable right, namely the right to dispose of its own property. The rule is the other way. In Roberts v. Harrington, supra, in considering a contract which in-express terms gave to the agent the “exclusive sale” of real estate, when a somewhat similar contention was made, the court said: “Does a contract giving the ‘exclusive sale’ of real estate to another preclude the owner from selling while the contract is in force. It is true the words will technically bear that construction. But when we stop to reflect upon the situation of the parties and the object sought to be attained as well as the content of this contract, we should not. give it that construction, unless the language is so clear and unambigous as not to bear any other. ’ ’ The contract in that case purported in express terms to give to the agent the “exclusive sale” of the property involved. There is no such language in the contract which we are considering.
In Ingolds v. Symonds, 125 Ia. 82, 99 N. W. Rep. 713, the court said: “The right of an owner to sell his own property is an implied condition of every contract of agency, and, unless expressly negatived, will prevail. ’ ’
In 4 R. C. L. p. 259 it is said that “in accordance with the weight of reason and authority it is generally held that a broker has. neither an exclusive right, nor an exclusive agency, to sell, even though he is employed for a definite period of time, unless he is granted either one or the other in "unequivocal terms to that effect; and in thé absence'of *244such an express grant the employer may sell independently, either through his own efforts or those of another. ’ ’
Applying this rule, and especially in view of the doubtful consideration to the owner, the contract involved in this ease should not, in my opinion, be so construed as to require plaintiff in error, the owner, to pay defendant in error, the agent, commissions upon portions of the land sold by it and with which sales it is admitted he had nothing to do.
There is no question of bad faith. It is simply a question of the construction of the contract.