On rehearing.
Hall, J.We adhere to the original opinion in this case.
In support of our conclusion that the contract referred to in the opinion is an optional contract, we cite Bradford v. Limpus, 10 Iowa, 35. We wish, also, to say that a careful reexamination of the authorities cited by the counsel of plaintiff shows that they do not apply to this contract, the peculiar language of which we sufficiently noticed in the original opinion. If the words used in the contract do not convey the meaning given them by us, it would be difficult to conceive words that would do so.
We desire to add something to what was said in that opinion as to the theory on which the court tried the case. The fact is, that, after the making of the contract set out in the foregoing opinion, the defendant made a sale of his property to Schaeffer. The sale was made about one and a half years after the making of the contract. In the meantime, Schaeffer having refused to purchase the land, the defendant had instituted a suit against him for damages on account of such refusal, which he had dismissed before trial, and had instituted a second suit on the same ground, which was at the time of the sale undisposed of; and Schaeffer had instituted a suit against the defendant on the attachment bond given in the first suit, an attachment having been issued *686in that suit, and also on account of the contract between the defendant and himself. Schaeffer’s suit was also pending at the time of the final sale, and it and the last suit brought by defendant were both dismissed after the final sale of the land. There was no evidence that the final sale and the dismissal of the two suits were the result of a settlement of the parties. On the contrary, all the express evidence on the subject was to the effect that Schaeffer denied emphatically the binding effect of the contract procured by the plaintiff, and refused, in any manner, to recognize it as of any force. Between the making of the contract and the final sale of the land, so far as the record discloses, the plaintiff did nothing to procure a sale of the land.
On such facts, the court gave the following instruction for the plaintiff:
“The court instructs the jury that if you believe, from the evidence, that the defendant employed the' plaintiff to procure for him a purchaser of the real estate described in the evidence at and for the sum of twenty thousand dollars, and that plaintiff did procure a purchaser of such real estate at and for the said sum, or a greater sum, and that plaintiff was to recéive the usual and ordinary commission for finding such purchaser on the purchase price paid for said real estate, then you will find for' the plaintiff so much as you find to be the usual and ordinary commission on the purchase price of the real estate aforesaid.”
We thought, and still think, that this instruction does not refer to the final sale of the land, but that it refers to the contract between the defendant and Schaeffer, which was procured by the plaintiff. It was in accordance with this understanding of the meaning of this instruction that we said that the court tried the case on the theory that, by procuring the contract mentioned, the plaintiff performed his contract with the defendant.
But if we are wrong in this view of this instruction, and if the instruction does not refer to the final *687sale of the land, we think the instruction defective - and misleading in not plainly telling the jury that in order to find for plaintiff they had to find that the contract was the inducing or procuring cause of the sale finally made. There was no evidence of anything done by the plaintiff to procure that sale , but the procurement by him of that contract. Under such evidence, if the jury understood the instruction to refer to the final sale, they must have also understood that, because the plaintiff procured the contract, and the sale, in point of time, was subsequent to the contract, they might find that the plaintiff procured the sale. This is not the law. The broker must be the procuring cause of the contract on which he depends for his recovery. It will not suffice for his act to be one of the chain of causes producing the contract; it must be the procuring or inducing cause, or, as it has been said, it must be the causa causans. Ewell’s Evans on Agency, 341.
For this reason, with the concurrence of the other judges, the judgment is reversed and the cause remanded.