(dissenting). I cannot agree with the construction 'placed by my Associates upon the contract involved in the case at bar to the effect that respondent had the sole right to fix the selling price of the lands subject only to the condition that the price should not be less than the value fixed by the first appraisement. The clause, “and it is distinctly understood that, before any sale shall be binding upon the said Metcalf Land Company, the contract shall be approved and terms of payment thereof accepted by the said Metcalf Land Company,” is obviously intended as a limitation of the' power granted to Young to sell at such a price as he may deem best; and there is great force in the suggestion that it was the original intent of the parties that appellant should approve the contracts of sale with reference to the price at which the-land was sold as well as in other particulars. The .parties themselves, however, seem to have agreed upon a certain construction of this' clause of *453the contract, and whether or not their construction is correct, it was acted upon to such degree that neither party should now be heard to urge a different meaning. This construction is embodied in a writing subscribed by both parties, a clause from which is quoted at length in the majority opinion, and is to the effect “that under the original contract Mr. Young has the right to sell the lands at reasonable figures, not less than the appraised values, and that it is the duty of the company to approve of such sales without delay.” Respondent was therefore not permitted to arbitrarily fix a price of sale at any figure above the original appraisement, but must sell only at reasonable prices; otherwise appellant might refuse to approve the contract, and such action on its part would not be a breach of its contract with Young. It was only when the price at which -he tendered a sale was “at :a reasonable figure” that appellant might not arbitrarily refuse to approve the contract of sale on account of the price. The determination of what prices were reasonable and what unreasonable was not left to the judgment of either respondent or appellant, but was a question for the trial court under all the circumstances of the case. Whether or not the figure offered for a certain tract was reasonable depended on several considerations, important among which was the actual market value of the land at the time each sale was made. A price that was reasonable in 1897 and 1898 might in 1905 and 1906 be so far below the actual value of the land, at that time, as to be very unreasonable.
Respondent, therefore, could maintain his cause of action only upon the theory that he sold the lands at reasonable prices and a fair market value, which appellant arbitrarily refused to accept. He assumes that proof of such facts is a necessary element of his cause of action when he alleges in his complaint that the price offered “was the reasonable and fair market price, and was the fair market value per acre for said tract of land, and that it was the highest price that could be obtained for said land by plaintiff.” There is no presumption of law, however, that the prices at which respondent claims he sold the lands were reasonable or a fair market value at the time of the sale. Appellant in each case claimed that the price offered was below the actual value of the lands, and for that reason refused to approve the contract or accept the price. The denials of the answer raised a direct issue upon the allegations last quoted, and *454put respondent to his proofs. Unless, therefore, respondent produced evidence sufficient to satisfy a jury that the price offered was reasonable and a fair market value, appellant cannot be held for breach of contract. Respondent had no more right to fix an arbitrary valuation on the land than appellant had to arbitrarily refuse to approve a contract of sale made at a -reasonable price. There is absolutely no proof that the prices for which respondent claims to have sold the lands were reasonable unless his assertion that in certain cases the prices offered were “reasonable and acceptable” can be regarded as such proof. On the other hand, appellant claimed to have had an appraisement made of the lands by disinterested parties shortly before the time the alleged sales were made, and that the price sold for was in each -case below the appraisement. Such appraisement would seem to be -entitled’ to much greater weight as evidence of the actual value of the lands than'the bald conclusion of respondent that the prices offered were “reasonable and acceptable.” In any event the question of reasonable price was clearly one for the jury, and should have been submitted to it as demanded by appellant at the close of the trial.
The question whether the action is one to recover a broker’s commission or for damage for breach of contract has received a great deal of attention in the briefs of counsel; but whatever distinctions may be made in the character of these actions, respectively, there is little distinction in the proof required to establish a measure of damage. In the first case, in order to recover, respondent must show that he had produced a purchaser ready, willing, and able to carry out a contract of sale at a reasonable price, and that appellant then refused to convey. In the second case he must show a breach of contract by appellant, and prove “detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom.” Section 6563, Rev. Codes 1905. Such damages must be clearly ascertainable in both their nature and origin. They must be actual, not speculative; founded on fact, not conjecture. Hudson v. Archer, 9 S. D. 240, 68 N. W. 541. In order that he might recover such damages, respondent must satisfy the jury that he could and would have made bona fide sales of the lands to responsible purchasers for their reasonable market value within the time fixed by his contract if he had not been prevented from so doing -by the unauthorized acts of appellant.
*455Respondent seems, upon the trial, to have recognized that it was incumbent on him to make proof of the fact that in each case of an alleged' sale "said purchaser so contracting or offering to purchase said land was one who was ready, willing, and able to purchase the said land on the terms stated,” as he asked leave to amend his complaint by inserting such allegation; and it would seem that where he was relying for proof of his damage upon sales actually made that he correctly assumed to show by this means that his sales were bona fide and made to responsible parties. The allegation inserted by amendment was covered by the denials of appellant’s answer, and respondent was thus put to his proof. He offered no evidence, however, from which a jury might reasonably infer either that he had purchasers who were ready, willing, and able to purchase the land on the terms stated, or that the lands were sold in good faith to responsible purchasers for their reasonable market value at the time of sale; and at the close of the trial, although appellant insisted that these questions together with the other questions of fact arising in the case be submitted to the jury, the trial court directed a general verdict in favor of respondent.
In the status of the case at the close of the testimony, in my opinion, respondent’s evidence under the most favorable construction falls short of proof of a cause of action either for the recovery of a broker’s commission or for damages for breach of contract. The entire failure .of any competent evidence upon several essential points might have justified the trial court in directing a verdict for defendant. Certainly, in view of the vague, doubtful and conflicting character of the evidence offered on these points, the trial court was not warranted in holding that intelligent minds might not fairly differ in the conclusions necessary to sustain respondent’s ’cause of action and in directing a verdict for the plaintiff.