Plaintiff seeks to recover from defendant a balance claimed to be due as commission for the sale of a half section of land in Stutsman county. Paragraph 2 of the complaint alleges in substance that on or about December 15, 1912,.defendant employed plaintiff to find a purchaser for such land, and that the parties entered into a verbal contract by the terms of which the defendant undertook to find a purchaser on the following terms: Plaintiff was to pay his own expenses in advertising and soliciting a buyer, and defendant agreed; to sell the land to any purchaser that the: plaintiff should find for the sum of $4,000 cash; plaintiff to have all'that he could secure for the premises above that sum as his commission.
Paragraph 3 of such complaint, after certain immaterial averments,, alleges that on or about February 26, 1912, plaintiff and defendant-entered into a verbal contract whereby the latter agreed to sell the premises at the price of $4,800, out- of which he agreed to pay the plaintiff $900 to recompense him for his expenses, labor, and commission in finding a purchaser, and that the defendant was to accept $3,,000. cash and $1,800 on time, to be secured by a mortgage on the premises, and. that plaintiff’s commission was to be paid when such sale was consummated. It is further therein alleged that a sale was consummated upon the above terms, and that plaintiff is entitled to recover $900. Defendant’s answer consists of a general denial, coupled with an averment that the commission agreed upon was $1 per acre, and that the same was paid prior to the commencement of the action.
*404It was stipulated that defendant gave plaintiff a check for $320 prior to the commencement of the action, and that such check shall be regarded the same as cash. Therefore, if defendant’s version of the contract is correct the plaintiff has been paid in full, otherwise not.
At the commencement of the trial defendant requested the court to require plaintiff to elect whether he relied upon the contract alleged in ¶ 2 or that alleged in ¶ 3 of the complaint. In other words, whether he claimed to be entitled to the net amount received in excess of $4,000, or whether he demanded $900 under the alleged contract in ¶ 3. The court refused to require such election, and plaintiff was permitted to introduce evidence tending to support both theories of liability. The court, among other things, instructed the jury that the alleged agreement set forth in ¶ 2 was necessarily the basis for determining how much plaintiff was entitled to for his services, in effecting the sale, provided they believed plaintiff’s testimony.
The jury returned a verdict for $580 and interest, being the difference between $900 and the amount of the payment by check as aforesaid, and the appeal is from the judgment entered pursuant to such verdict.
Appellant contends that the evidence is insufficient to sustain the verdict, also that the court erred in numerous respects in instructing the jury and in admitting and excluding testimony at the trial.
As we view the record it will not be necessary to separately consider the various assignments of error made in appellant’s brief. To our minds there is a basic fallacy pervading the entire proceedings in the court below and which resulted in causing a mistrial. In other words,the learned trial court proceeded throughout the trial upon the erroneous assumption that the complaint alleges, and the plaintiff’s proof tended to establish, that but one contract was made by these parties, which contract authorized plaintiff to receive as his commission the sum for which the property should be sold in excess of the net price fixed by the defendant. For reasons hereinafter 'stated, we have no doubt that in thus holding, the learned trial judge erred to the manifest prejudice of appellant. In the first place, we think it very clear that the second and third paragraphs of the complaint set forth inconsistent contracts, and that it was error to overrule defendant’s motion to require plaintiff to elect upon which he would rely. Surely, a contract alleged to have been made in December, 1911, whereby defendant agreed to accept a net *405cash price of $4,000, giving to plaintiff as commissions all excess above that sum for which the property might he sold, differs radically from a contract alleged to have been made in February, 1912, whereby defendant “agreed with this plaintiff that he would sell the premises . . . for the sum of $4,800, out of which he agreed to pay the plaintiff the sum of $900 to pay his expenses for labor performed and for his commission. The said defendant to accept $3,000 cash and $1,800 in a note secured by first mortgage upon the premises. Plaintiff’s commission to be paid when sale was consummated.” It would seem to require no argument to demonstrate that these paragraphs of the complaint set forth two wholly inconsistent agreements. The contention that the 3d paragraph merely alleges a modification of the prior contract is, we think, without'merit. It is of a wholly .different character, and purports to be complete and entirely independent of any prior agreement.
,But what we deem still more prejudicial to defendant’s rights is the construction which the trial court placed upon the evidence, to the effect that by the terms of the contract plaintiff was to 'have as his commission for effecting a sale all the selling price in excess of a stated amount. This was error, and such error pervades the whole case. There is not even a scintilla of evidence in the record tending to show that any such contract was entered into; and yet the trial judge in effect instructed the jury that the court would take judicial notice of a custom that where land is listed for sale with a real estate agent or broker at a net price, such agent or broker is entitled to have and retain as his commission all the excess of the selling price above such net price. If any such custom prevails, there is no proof thereof, and we do not think it a matter of which the court may take judicial notice. The law, for reasons which appeal to us as sound, seems to be well settled to the contrary. Turnley v. Micheal, 4 Tex. App. Civ. Cas. (Willson) 363, 15 S. W. 912; Allen v. J. A. Clopton Realty Co. — Tex. Civ. App. —, 135 S. W. 242; Chezum v. Kreighbaum, 4 Wash. 680, 30 Pac. 1098, 32 Pac. 109; Boysen v. Robertson, 70 Ark. 56, 68 S. W. 243; Matheney v. Godin, 130 Ga. 713, 61 S. E. 703; Scott v. Hartley, 126 Ind. 239, 25 N. E. 826; Ford v. Brown, 120 Cal. 551, 52 Pac. 817.
In the case of Turnley v. Michael, 4 Tex. App. Civ. Cas. (Willson) 363, 15 S. W. 912, the language of the owner was, “I will take $7,500 net to me.” The broker made a sale for 'the sum of $8,000,. and he *406•sued to recover the $500 received over aud above the net price which -the owner had said he would take. The court, however, declined to ¡sanction such recovery, holding that the broker could recover as his commission on the sale only a reasonable sum. The holding of this case is expressly approved in Allen v. J. A. Clopton Realty Co. — Tex. Civ. App. —, 135 S. W. 242, and also in Chezum v. Kreighbaum, 4 Wash. 680, 30 Pac. 1098, 32 Pac. 109. In Allen v. J. A. Clopton Realty Co. the court said: “It is well settled that a real estate broker to sell land for a certain net price is not entitled, in the absence of a.contract therefor, to the excess over such price as he may obtain for the land.”
In Matheney v. Godin the Georgia court in a well-considered opinion, among other things, says: “Where the owner agrees with brokers for them to sell property for a named amount, 'net to him,’ such language will not be held to import by implication a contract to allow the brokers, as a fee or profit, all of the purchase price .in excess of the sum so named.” To the same effect are the holdings in the other cases above cited, and many more which we have not taken the space to cite. Of course, if plaintiff had proved the contract as alleged in ¶ 2 of his complaint, he would be entitled to recover the excess above the list price, but, as before stated, he offered no testimony in support of'such paragraph. In the absence of proof of an express agreement as to the amount «of plaintiff’s commission, it is elementary that he can recover only on the quantum meruit.
The judgment is reversed and a new trial ordered.