This is an action for damages in that defendant broke his contract to pay plaintiff a commission for the sale of defendant’s farm. The contract alleged is that plaintiff undertook to sell defendant’s farm for forty dollars per acre and that he was to receive all over that sum for which he sold, as his commission. It is then alleged that a proper purchaser was produced, ready, able and willing to purchase at forty-five dollars per acre, but that defendant, disregarding his contract, refused to sell, whereby plaintiff was damaged in the sum of $961.25, that amount representing five dollars per acre. At the close of the evidence the trial court gave a peremptory instruction to find for the plaintiff and thereupon defendant appealed.
Plaintiff contends the trial court properly directed a verdict, since the evidence was uncontroverted, in any way, that he was entitled to recover the amount of the contract price, to-wit: five dollars per acre, for producing the purchaser. If the plaintiff is correct in his view of the evidence he was entitled to the instruction. [Powell v. Railroad, 76 Mo. 80; Jackson v. Hardin, 83 Mo. 175; Warner v. Railroad, 178 Mo. 125; Furber v. Bolt Co., 185 Mo. 301, 311; May v. Crawford, 150 Mo. 504, 527; Bank v. Hainline, 67 Mo. App. 483; Commissioners v. Clark, 94 U. S. 284.]
But defendant makes stout denial of plaintiff’s assertions and of his view of the case, and insists that the evidence developed substantial controversy as to the facts, which should have been submitted to the jury for determination. We have gone over the record and find *266that the evidence does fail to make out an incontrovertible case for the plaintiff. The record shows substantial difference as to the facts, which condition demanded settlement at the hands of the jury, and for this reason the judgment cannot stand. The argument advanced by plaintiff in this court as to inferences and conditions is proper enough for a jury, but does not justify peremptory action by the court.
It would serve no useful purposeto set forth the evidence and detérmine the case on hypothetical statements which may or may not arise on another trial. But for the error committed we reverse the judgment and remand the cause.
All concur.