dissenting, (a) The real-estate agent in this case proposed the sale, and presumably provided the written contract which the seller and buyer signed. It provided that if the title to the property 'was good and the purchaser failed or refused to complete the trade, the purchaser would pay the agent the amount of commission the agent would have received if the purchaser had complied with the terms of the contract. The agent was not a party to the written contract. I think that under these circumstances the idea of an implied contract on the part of the seller to pay the agent a commission was excluded, especially one based on the idea that the seller was liable for the commission, not because a buyer had been produced who was ready, willing, and able to buy, but on the theory that the seller accepted the purchaser produced. I think the written contract covering the matter of commissions excluded the implied contract to pay. The agent’s participation in the transaction amounts to an agreement thereto and waiver of the implied contract on the part of the seller to pay the commission.
(5) The plea was based on implied contract and it was necessary for the defendant to prove the reasonable value of its services. The only evidence of that was that five per cent, was the *653commission fixed by the Atlanta Real Estate Board, and that that was the usual and customary commission. This was no evidence of reasonable value.
(c) The seller sued the agent for $100, which was a deposit put up by the buyer to bind the bargain. The agent answered the suit with the following contentions: that it had earned a commission of $312.50 in negotiating the contract of sale; that it had on hand $100, and that the seller is indebted to it in the sum of $312.50, less the sum of $100 which the agent had on hand; that it denied that it was indebted to the plaintiff in any sum, but said that the plaintiff is indebted to it in the sum of $212.50. My view is that there was involved in controversy the sum of $312.50, and that the appellate division of the municipal court of Atlanta did not have jurisdiction of the case. The court of necessity had to adjudicate whether the seller owed the agent $312.50 before a judgment could have been rendered for the plaintiff for $100 or for the defendant for $212.50. The case is not similar to one where an account is sued on, where voluntary credits by the defendant are shown, thus reducing it. In this ease there was no voluntary payment to the defendant. It had $100 which belonged to the plaintiff in any event, and the adjudication as to whether it had a right to apply the $100 as attempted depended on the adjudication of the $312.50 controversy in its favor.