(dissenting):
For the reasons hereinafter stated, it is my opinion that the trial court erred in failing to instruct the jury concerning the existence of an exclusive real estate contract.
The front side of the card contract involved herein provides as follows:
“EXCLUSIVE listing CONTRACT (adopted by the Oklahoma City Real Estate Board)
(Feb. 6) 19 (62)
To (Bob Graham Realtors)
I own property described on reverse side, and, in consideration of your advertising this property for sale, I hereby grant and give to you the sole and exclusive right to sell the same for a period of (90) days from this date, and thereafter until notified by me in writing.
“In the event it is sold by you, or myself, or by any other person during said time, for the price and upon said terms acceptable to me, then an in either of said events, in consideration of your listing and property and endeavor to sell the same, I promise and agree to pay the regular fixed commission as adopted by the Oklahoma City Real Estate Board. In the event said real estate is traded or exchanged for other property during said time, I promise to pay the usual exchange commission.
Owner (s/ C. M. Bishop)
The words and figures appearing in the body of the contract in parentheses were hand-written.
Plaintiff testified that he had advertised the ranch some 39 times, and had traveled several thousand miles in showing said property to 15 or 20 prospective purchasers, one of whom was Paul Smith. Concerning Smith, plaintiff testified that he showed the ranch to Smith on three different occasions, the first being in the latter part of April or the first part of May, with the other occasions being in early June and in late July, on the second of which occasions he introduced Smith to defendant. Plaintiff also testified that he had last advertised the property on July 31, 1962, and several days thereafter was informed orally by defendant that the listing would be terminated on August 6 as he (defendant) no longer wished to sell.
*228As noted in the majority opinion, defendant testified that he did execute the contract on February 6, 1962, but that the exclusive listing was only for a period of 90 days; “that I only read what he had written in there, the 90 days, that he had 90 days.” He further testified that plaintiff had never requested an extension of the contract, but did, in July, 1962, request permission to show the ranch to Smith; that he granted such permission to plaintiff and at the time of such showing he first met Smith; that some time in early August, while he was standing on the street in We-woka, he was approached by Smith who asked whether the ranch was still for sale; that he invited Smith to the ranch for the purpose of more closely viewing the premises; that Smith spent the night with defendant and that the following morning made an initial offer to purchase which resulted in the negotiations which ended in the sale to Smith for the price of $53,000.00. Defendant denied that he had phoned Smith at the latter’s residence in Indiahoma on or about August 8 to inform Smith of the availability of the ranch and stated that Smith himself had made a call to Indiahoma on such date to speak with Smith’s mother.
The deposition of Smith was introduced without objection, and, in brief summary, he testified that over a period of 3 to 4 years he had been shown a number of farms by plaintiff, several of which were located in Seminole County; that he first saw defendant’s property in May, 1962; that in July, 1962, he again inspected said property and on this occasion first met defendant; that because of the necessity of first selling other property he owned in Comanche County, he was not ready, able and willing to purchase defendant’s property until after August 1, 1962; that he subsequently happened to meet defendant in Wewoka, and upon learning that the ranch was still for sale, traveled there with defendant and again viewed the premises, and that he thereafter purchased the property for $53,000.00. Smith denied that defendant had ever telephoned him concerning the possible sale of the ranch.
On appeal, as the opinion of the Court noted, plaintiff contends that the trial court erred in refusing to give certain requested instructions. Among these requested and refused was plaintiff’s requested instruction number 5. That instruction number 5, in brief summary, would have charged the jury that the exclusive listing contract could be cancelled only by written notice, and unless written notice was found to have been given, it must be assumed that the listing contract was still in effect at the time of the sale.
Although the above requested instruction is not as full as it might be, it is my opinion that a complete and proper instruction of similar effect should have been given to the jury.
This Court has previously held that it is the duty of the trial court to properly instruct upon the material and decisive issues involved in a case, and the failure to so instruct on such issues raised by the pleadings and evidence, constitutes reversible error. Phillips Petroleum Co., v. Price, Okl., 298 P.2d 772; International Harvester Co. v. Snider, 184 Okl. 537, 88 P.2d 606; Baumgart v. Bryant, 184 Okl. 531, 88 P.2d 635. To my mind, the question of the existence of an exclusive real estate listing at the time of the sale of the property involved herein is one of the decisive issues in the case. None of the instructions given by the trial court covered this issue. Rather the trial court instructed the jury to find for plaintiff if they found that he was the procuring cause of the sale. Under Oklahoma law, a broker with the exclusive right to sell property does not need to show that he is the procuring cause. Davidson v. Vandegrift, 292 F.2d 651 (10th Cir. 1961). In this case the card contract as above quoted provided for a commission to plaintiff even if defendant owner or anyone else should sell the place while the contract was in force and effect.
By its express terms, the listing contract granted to plaintiff the sole and exclusive *229right to sell the property for a period of 90 days and thereafter until terminated in writing. The hand-written portion on the reverse side of the contract, referring only to sale price and commission based on such sale price, is in no way inconsistent with this explicit printed portion describing the term of the contract. Further, it is my opinion that plaintiff’s alleged attempt to obtain a 90-day extension of the listing contract was not necessarily inconsistent with the contractual language providing that the listing remained in effect until terminated in writing. The original 90 days, as well as any extension thereof, provided a period during which the listing could not be cancelled except by mutual consent. Thereafter, as I read it, the contract remained in full force and effect but could be cancelled by defendant giving written notification thereof.
Therefore, if this listing were still in effect at the time of sale, plaintiff, as the holder of the sole and exclusive right to sell, was entitled to receive a commission.
However, in my view, the evidence submitted below does present some question as to whether the contract was still in force. Defendant testified, in effect that he intended to grant a listing of only 90 days. This parol evidence as to intent, although incompetent as varying the unambiguous language of the contract, IS O.S.1961, § 155, was not objected to by plaintiff and must be given consideration since admitted into the record. 12 O.S.1961, § 424; Sanley v. Wilkerson, 107 Okl. 54, 229 P. 574; Jones v. Citizens State Bank, 39 Okl. 393, 135 P. 373.
Further, plaintiff testified that in early August, 1962, he was told by defendant that the listing would be terminated August 6, 1962. There was no evidence submitted below that plaintiff made any demand at such time that defendant comply with the terms of the contract and terminate the contract by giving a written notification. In my opinion, the requirement concerning written notice, unless waived, was a condition precedent to the termination of the contract. Bu-Vi-Bar Petroleum Corp., v. Krow, 40 F.2d 488, 69 A.L.R. 1295 (10th Cir. 1930).
Defendant argues, in effect, that for plaintiff to be entitled to receive a commission, he was required to fulfill the condition of the contract, i. e., to sell the property at a price of $62,500.00 net to defendant. I agree that where a broker contracts to procure a purchaser on certain terms he cannot recover unless he fulfills these express conditions. J. L. Lemmon Co. v. Oppenheimer, 155 Okl. 209, 8 P.2d 679. It is also my view that the evidence submitted below, to which no objection was made, as shown in the record presently before us, presents a question whether the intent of the contract was only to grant plaintiff the right to sell on certain specified conditions, or whether the intent was to grant the plaintiff the sole and exclusive right to sell the property.
Under the record presently before us, it is my opinion that the trial court should have instructed the jury properly concerning the fundamental issue of the continuation in existence of the listing contract at the time of the sale. If properly raised by the evidence submitted at a new trial, such instruction or instructions should also cover the matter of defendant’s alleged intent and any waiver by plaintiff of written notice.
It is my opinion that the judgment below should be reversed and the cause remanded for new trial.
I respectfully dissent.
I am authorized to state that Mr. Justice HODGES concurs with the views herein expressed.