(dissenting.) I deem that a 'better understanding of all matters passed upon by the court in this case can be secured by making the points considered on rehearing the subject of a separate dissent as suggested by the arrangement adopted in the majority opinion. The remarkable shift in position of the parties which took place upon the rehearing of this appeal renders such division into parts almost necessary. Further than this, it better serves to illustrate the changes in view of the parties and of -a majority of the court between the first hearing and rehearing and to bring out perhaps somewhat more clearly the reasons for my dissent.
As shown by an examination of the opinion upon the first hearing, the basis and groundwork of. the decision was ¡a 'construction of the contract involved by a majority of the court, to the effect “that the dealer [that is, the respondent] had the sole right to fix the selling price of the lands.” It was also contended by respondent, and held in that opinion, that the respondent, having been prevented by act of appellant from making sales under the contract, was entitled to recover the profits he would have made had the offers received by him been accepted without reference to the usual test of whether or not the purchaser presented by him was ready, willing, and able to make the purchase. My dissent to that opinion was based upon the considerations: (1) That a proper construction of the contract did not give respondent the absolute right to fix the selling price of the lands, but required him to make sales at reasonable figures not less than the appraised values; and (2) that the sales not having been consummated, in order to prove a cause of action against appellant, respondent must, among other things, produce satisfactory and competent evidence that the purchasers whose offers he claimed to hold were ready, willing, and able to make the purchase. Both of these propositions were combatted by respondent in his original brief and on his first argument of the case. On the rehearing, in strong contrast to his first contention, respondent, conceded that the correct construction of that clause of the contract providing for fixing a selling price is that “Young had no right to arbitrarily fix the selling price; on the contrary, he was bound *458to act with diligence in good faith and reasonably and to put forth his efforts to get a reasonable price for the land and as much as he could. And, if he failed to observe any or either of the three implied obligations under which the contract placed him, it would be a breach of duty, and his act would impose no obligation on the other party.” This plainly is a concession that, in order to maintain this action, Young must prove that the offers of purchase which he claimed to hold were made at reasonable prices. Such is admitted by the modified view of the majority of the court on rehearing in the words: “Plaintiff had the right to sell the land at reasonable figures not less than appraised value.” This sweeping reversal of a fundamental principle of the first decision of the majority of the court led naturally to the expectation of a reversal of the decision itself; and the fact that the conclusion arrived at is the same emphasizes the fact that it is the result only and not the reasoning of the former opinion that is held to be right. All changes of attitude either upon the part of respondent or of the majority of the court are not, however, so remarkable in my opinion as the holding that notwithstanding this complete reversal of the basic principle of the former decision “the evidence shows that the price offered and submitted to the defendant by plaintiff for each tract of land in controversy was a reasonable and fair price for said tract.” The only evidence in the record that can be said to touch even remotely upon the question of the reasonable value represented by the prices named in the offers to purchase is contained in respondent’s own assertion that the price offered was one which he deemed “reasonable and acceptable.” This statement is made without the slightest preliminary showing that the plaintiff had any acquaintance whatever with the tract of land concerning which he testified or with the value of the lands of that character in the community in which the land lay. More than this, he did not attempt to say what was the actual value of lands of that quality in the locality in .which these were situated, but gave simply his opinion as to the value that to a dealer in lands under the circumstances of this sale was reasonable and acceptable.
The only support to such evidence suggested by the majority opinion is that “the evidence abundantly discloses plaintiff’s qualifications as an expert witness to testify on the question of the reasonable values of the land in controversy.” I do not think that it has ever been held in any court that the value of real estate is a proper subject for expert testimony, and know of no reason why *459rules of evidence should he relaxed to permit the introduction of testimony of doubtful or inferior quality upon a question of this character, where, as in this case, the subject of valuation is spread out before the world. A statement of value, even when made in absolute terms by a witness acquainted with the land and with going prices in the community, has in it a large element of opinion or conclusion. To permit a witness whose qualification is simply that of an expert in the sale of lands to express an opinion that a certain sum is a reasonable value for lands with which he is wholly unacquainted means simply to build one conclusion on another and thus to produce a result doubly fallacious. The question of the value of these lands was one concerning which any person acquainted with the lands and with the values of real estate in the locality in which they lay was competent to testify. There is no question but that such witnesses could have been produced. Such being the case, why should the mere conclusion of a dealer who lived 300 miles or more distant from the lands, and who, so far as the evidence shows, had acquaintance neither with the quality nor the value of the lands, be received as competent evidence? The majority opinion states that “paragraph 2 of the contract shows that before it was entered into plaintiff had caused to be made a careful examination of the lands and an appraisement thereof, which appraisement was marked opposite each tract, and was accepted by the defendant and attached to the contract.” It is true that the contract contains such clause; but it was executed on the 20th day of January, 1897, more than 10 years before the trial of this action; and it is difficult to understand how an appraisement made, not by respondent personally, but merely under his supervision, could qualify him to testify as a .competent witness as to the reasonable value of the lands at the time of trial. Even though he had seen the lands at the time of the appraisement, the change in value that had taken place in the period of time that had elapsed would make it necessary for him to show that he was still familiar with the prices of land in that ¡locality. The fact that appellant accepted the appraisement made under respondent’s direction at this remote date it must in fairness be admitted does not in any manner bind it to estimates made by him 10 years later; and in the changed view of the majority of the court in reference to respondent’s right to fix prices his statement that the price offered was “acceptable” or advisable to accept adds not the slightest weight *460to his testimony. While counsel for respondent, does not still concede that it was necessary for him to show upon the trial that the purchasers offered were ready, able, and willing to make the purchase, the majority of the court in its opinion on rehearing concedes that it was necessary; but holds as it did with respect to proof of reasonable value that this fact is sufficiently shown by the evidence. The evidence in the record accepted by the majority of the court as sufficient for the purpose is that “the proposed purchaser for each tract of land made a binding written offer which defendant could enforce as soon as it accepted the said offer.” Such evidence is, in my opinion, more entirely inadequate for the purpose than that offered to prove reasonable value. There can be no question, I think, but that appellant might without breach of its contract have refused to approve of an offer of purchase, though made at a reasonable price, when it knew the party making'it to be entirely irresponsible finacially, in no condition to comply with the terms .of sale, and against whom a claim for damages could not be enforced in case he failed to carry out the contract. It would not be contended for a moment, I think, that, if respondent made sales to persons of this character and appellant refused to carry them out, respondent could be said to have suffered damage by its failure so to do.
As said in a well-considered opinion of the Supreme Court of Colorado: “Refusal of the defendant to consummate the sale has not damaged the plaintiff unless he can show that if the defendant had carried out his contract the sale would have been made. How can he show this except by proving that at the time the contract was repudiated, as claimed, he was in a position to have effected a sale in conformity with the conditions under which the property was placed in his hands ? Certainly he has not been prevented from earning his commission by the mere fact that defendant refused to sell the property unless he proves that, but for the conduct of the defendant, the sale would have been consummated. The refusal of the owner to sell according to contract does not prove, neither does it raise a presumption, that the alleged purchaser was. able to purchase, but renders the owner liable to the broker for commissions, the same as though the sale had actually been effected, provided the latter establishes that the proposed purchaser was ready, able, and willing to make the purchase upon the terms stipulated by the owner to the broker. The repudiation of the contract h}*' the defendant did not change the rule of law that the plaintiff ¡must make out a prima *461facie case, and establish a state of facts from which it appears that he had earned his commissions. In order to do this, even though the defendant had refused to sell, it was incumbent upon the plaintiff to prove that at the time or times when according to his claim he had the right under his contract with the defendant to effect a sale that he had a purchaser ready, able, and willing to take the property upon the terms and conditions under which the defendant had agreed to sell. * * * While it is true that there seems to be some conflict of authority on the question of whether or not it was necessary for the broker to prove the financial ability of the purchaser, in those cases where the owner refuses to' carry out the contract of sale, we are of opinion that the great weight of authority and the well considered cases on the subject require plaintiff to make such proof, because he must show, before he is entitled to recover his commissions, that he performed those actions which, according to the contract of his employment, it is necessary for him to perform in order to become entitled to the compensation agreed upon.” Colburn v. Seymour, 32 Colo. 430, 76 Pac. 1058. If the effect of the decision in this case is to establish as a rule of practice in the courts of this state that a broker claiming commissions, in cases in which the owner refuses to convey, may prove that he has procured a purchaser ready, willing, and able to make a purchase in any amount by simply producing a written offer to purchase, made by some unknown, obscure, and, perhaps, wholly irresponsible person, I believe that the innovation will be both dangerous and demoralizing. The courts of last resort of but one state Minnesota, have approved such practice. It has been squarely repudiated by the Supreme Court of Iowa, which announces a safer rule in better accord, not only with the general principles of evidence, but with the current of authority on this point, in these words: “We think that, in order to entitle plaintiffs to recover, something more than a mere offer to purchase should be shown by them. Such an offer could be made by one without means, and who is in no condition to comply with the terms of the sale, and against whom a claim for damages, resulting from a failure to perform the contract of purchase, could not be enforced. An offer from such an one ought not to be considered as constituting the performance of plaintiffs’ undertaking to nego-tiate the sale of the land. As the pecuniary responsibility of the purchasers was or ought to have been known to plaintiffs, and as upon it depended the performance of their contract with defendant. *462the burden rested upon them to show it. These conclusions are supported by Coleman’s Ex’rs v. Meade, 13 Bush (Ky.) 358, and McGavock v. Woodlief, 20 Hpw. 221, 15 L. Ed. 884.” Iselin et al. v. Griffith, 62 Iowa, 668, 18 N. W. 302. Additional support to this rule is to be found in Flynn v. Jordal, 124 Iowa, 457, 100 N. W. 326; Leahy v. Hair, 33 Ill. App. 461; Zeidler v. Walker, 41 Mo. App. 118; Kimberly v. Henderson, 29 Md. 512; Nolan v. East, 132 Ill. App. 634.
(122 N. W. 1101.)Of the decision of the majority of the court as it now stands as compared with the conclusions ainnounced on the first hearing of the case it may truly be said that the last state is worse than the first, in that the rehearing seems to have resulted only in the adoption of what I believe to be an unsound rule of practice, which, if sustained, can scarcely fail to be productive of confusion, if nothing worse, in future cases.