1. In a suit for a real-estate broker’s commissions the burden is on the plaintiff’ to establish a contract of listment and its performance on his own part. While the letter and telegram of the defendant did not bind him in express terms to pay commissions, it can not be questioned that in thus agreeing to list the property with the plaintiff he must have known that the plaintiff understood he was to receive the commission which had been specified in the letters to which the defendant was replying. Accordingly, there was established a contract listing the property with the plaintiff broker, which, had it been performed according to its terms, would have entitled the plaintiff to the commissions sued for. Civil Code (1910), § 4267.
2. Ordinarily a real-estate broker earns his commission when, “during the agency he finds a purchaser ready, willing and able to buy, and who actually offers to buy on the terms stipulated by the owner.” Civil Code (1910), § 3587. If the owner of the property desires to limit his liability for commissions in a manner other than that which is governed by the general rule, such as that commissions will be due only in the event of a consummated sale, provision for such limitation of liability must be embodied in the authority to sell. If property has been listed without any such limiting stipulations, the owner can not, after receiving an offer in accordance with the terms of the authority to sell, proceed to impose special limitations upon his liability for commissions. But if the offer as submitted is at variance with the terms of the contract listing the property, the owner may either decline the offer or accept it coupled with new conditions or limitations limiting his liability for commissions; the effect of such a conditional acceptance being to submit a counter-proposal under which the property might be sold, and under which he would be liable for commissions. Howard v. Sills, 154 Ga. 430 (114 S. E. 580); Winer v. Flournoy Realty Co., 27 Ga. App. 87 (2) (107 S. E. 398).
3. Where by the terms of a letter dated March 11, 1925, the owner of property rendered himself liable for broker’s commissions upon the submission by the broker of an immediate bona fide cash offer in a stated sum, and where, on April 2 following the broker, in pursuance of such correspondence submitted an offer at the price named, but contingent upon payment being deferred several months thereafter, the owner of the property was not liable to the broker for commissions under the offer *657as made, both because it was not immediate, and for the further reason that its terms with reference to deferred payment were at variance with the terms stipulated by the contract of listment.- In such a ease, that is, where the rights of the broker under the previous agreement have become terminated, and the owner, in response to such an offer as thus submitted, notifies the broker that he will then accept the price previously indicated, provided it be paid in cash, and provided further that the attorney’s fees to be paid by him' in effecting the transfer of title shall not exceed $5, the stipulations embodied by the owner in such renewed offer are valid and binding, and must be con formed to by the broker before he can claim commissions thereunder. Where, in such a case, the broker renews the offer on behalf of his client to purchase, but with such offer notifies the owner that “the attorney’s fee for drawing deed and attendance at closing will cost $25,” the owner of the property is not liable to the broker for commissions under the renewed offer as made, for the reason that the terms of the offer with reference to attorney’s fees are at variance with those stipulated. In such a ease the renewed offer t’o purchase, being at variance with the proposal to sell, amounts to nothing more than a counter-proposition made through the broker, and the owner is at liberty to reject the same without being liable to the broker for commissions, or he is at liberty to accept the same coupled with a new condition of his own providing, in effect, for the payment of commissions only upon the actual consummation of the sale. See, in this connection, Humphries v. Smith, 5 Ga. App. 340, 343 (63 S. E. 248).
Decided January 16, 1928.4. No offer having been submitted by the broker in accordance with the terms and stipulations of any authority to sell, and the purchaser found by the broker having refused to actually consummate the sale as required by the valid terms of the final proposal made by the defendant owner, the verdict rendered in favor of the defendant was in accordance with law, and the judge of the superior court did not err in overruling the motion for a new trial.
Judgment affirmed.
Bell, J., concurs.