(dissenting)'. In this case the plaintiffs bring suit to recover $5,400, as commission on the sale of two sections of land, and they appeal from a verdict and judgment and an order denying a motion for a new trial.
The complaint avers that the defendants agreed to sell to plaintiffs, or any purchaser by them produced, the two sections for the sum of $13,800, and to allow the plaintiffs, as a commission, any sum that they might obtain for the land in excess of $18,800; also, that on June 15, 1912, the plaintiffs produced a purchaser able and willing to pay $19,-200; and that the defendants refused to sell the land.
*23The answer is: (1) A general denial; (2) that on June 5, 1912, the alleged contract of sale was revoked.
From letters and oral testimony it appears that the defendant Kern was a cashier at Sentinel Butte, and that he and the defendant Hart had a side business as real estate brokers; that the two sections in question were listed with them for sale. They made an oral agreement with the plaintiffs, who resided at Minneapolis, to save them a commission in •case they found a purchaser for the land. The claim of the plaintiffs is that the owner of the land was to have $10 an acre net, and the defendants to have $1,000 as commission, and that the plaintiffs were to have as commission the excess of the sale price. Also, that about May 1, 1912, the plaintiff Edgerton went to Sentinel Butte with Joseph Huber •and showed him the land; notified defendant Kern that if Huber did not take the land the plaintiffs had other customers who would take it, and on June 4, 1912, the plaintiff Edgerton, Joseph Huber, and Dr. Taylor left Minneapolis on a land-buying trip, and they stopped off at Sentinel Butte, and on June 6th they again looked over the land. Then it was claimed that while in Butte defendant Kern made a secret offer to Huber to sell him the land for $12 ah acre; that on his way home Dr. 'Taylor stopped at Minneapolis and bargained with the plaintiffs for the two sections at $15 an acre, and notice by telegram was given defendants.
The motion for a new trial is based on alleged errors in the instructions to the jury and on surprise at the trial. The surprise is based on the fact that the defendants did not bring with them and produce in •evidence on the trial correspondence with Huber in regard to the sale of the land to him; but there is no showing that defendants were under •obligation to produce the letters, and hence there was no occasion for any •■surprise; and in regard to the instructions to the jury, they were based on the pleadings and issues. The complaint states a claim for $5,400 by reason of an alleged contract of sale made by the plaintiffs on July 15th. There was no claim made under any other sale. The charge of ■the court was correctly given in regard to the sale as alleged in the ■complaint, and the rescission and the sale contract by the parties.
The plaintiffs claim that the court erred by failing to instruct the jury in regard to their right to recover by reason of a sale made by the ■defendants themselves to Joseph Huber. The answer to that is that they did not request any such instructions and the complaint made no *24claim to recover on a sale to Joseph Huber. The plaintiffs elected to base their claim on a sale contract, promising a commission for three times as much as the sale to Huber. They did not choose to make or to urge a claim to the lesser commission, as it would have lessened their claim to recover the greater commission. Had the court volunteered to do it for them, they might have assigned it as error. On the issues as presented, the plaintiffs had a fair trial. The verdict is sustained by the evidence and the judgment should be affirmed.