(concurring). The plaintiff sues to recover $1,200 commissions on a sale of 800 acres. The jury found for the plaintiff, and defendant appeals. The complaint avers that in June, 1910, defendant owned the west half and the southeast quarter of 21 and the east half of 20 in 133-52; that he listed the land with plaintiff for him to sell on certain specified terms, and for securing a purchaser he agreed to pay the plaintiff such sum as he might realize from the sale over and above $16 per acre; that on the same day plaintiff procured for defendant a purchaser at $17.50 an acre and thereby earned $1,200.
The answer is a general denial. The claim of defendant is that the commission was to be $1 an acre and only 50 cents in case of a sale *342made to a purchaser introduced to the agent by defendant, and that defendant did introduce a purchaser. Also that no sale was made in accordance with the terms on which the land was listed. Defendant also claims that the action is based on an express contract for the sale of land on express terms, and there is no evidence of a sale in accordance with the terms of the contract.
This is the third appeal to this court. The first appeal was from a judgment for $700, which was reversed because of error in the instructions of the court. Paulson v. Reeds, 24 N. D. 211, 139 N. W. 1135. The second appeal was from a judgment for $1,200. It was reversed because the court erroneously instructed the jury in effect that the signing of a paper known as exhibit A settled the question of commissions ,at $1.50 an acre. Exhibit A reads thus:
Martin Paulson:—
You are hereby authorized to sell my land west ½ and S. E. ¼ section 21 and east ½ 20-133-52 at $16 per acre net to me.
J. A. Needs.
The court held that this exhibit does not mention 'the matter of commissions, and the word “net” does not amount to a contract to pay all of the purchase price over the net to the agent. Louva v. Worden, 30 N. D. 401, 152 N. W. 689. That when the owner lists real property for sale with a broker and at a net price, in the absence of an express contract to that effect, such broker is not entitled to receive as commissions all the selling price in excess of such list price, but is merely entitled to a reasonable commission not to exceed such excess. Ibid.
On June 28, 1910, defendant met one Mr. Huey and introduced him to the plaintiff as a land buyer, and on the next day he arranged with the plaintiff to purchase the 800 acres at $17.50 an acre. He was to pay cash $500, to pay on receipt of abstract $500, and on November 15, 1910, $4,000 and for the balance $9,000 to give a 6 per cent mortgage payable in five years. Such was the contract as reduced to writing and agreed to between the agent and the purchaser. When it was shown to defendant he turned to his broker Paulson and said in substance: “I never authorized you to sell my land on any such terms as that.” Paulson said: “I know you did not, but that is as near as I could get *343Huey to come to our terms.” Needs said: “I told you I wanted $800 a quarter down and 7 per cent balance.” Paulson answered: “You said you would accept 6 per cent if the contract did not call for a mortgage running over three years.” Defendant said: “But this thing calls for a mortgage running five years.” Paulson said: “Perhaps we can get together and fix this up. Maybe Huey will make the interest 7 per cent or you will let the mortgage run for three years.”
Huey refused to make any change. It is entirely clear there was no sale in accordance with the express terms on which defendant had agreed to pay a definite commission. As defendant contends, the terms -of sale did not accord with the listing contract. When defendant objected to the contract of sale as drafted by plaintiff, the latter conceded that it was not according to the terms given him, but requested the plaintiff to sign it, saying that they could arrange the matter of -commissions so as to make it right and satisfactory.
The defendant by his counsel duly requested the court to give to the jury numerous special instructions, which are to the effect that as this action is based upon an express contract in regard to the terms and conditions for the sale of the land, the plaintiff cannot recover without proving a compliance on his part with the terms and conditions. In other words, that to recover a specified’brokerage commission in accordance with the terms of a special contract, the broker must prove a full compliance by him with all the terms of the contract.
The requested instructions were pertinent and material because the plaintiff’s claim is based on a specific contract, and the evidence is that plaintiff did not produce a purchaser ready and willing to buy the land -on the terms of the contract, and that no sale was made on any such terms. After listing the land the owner still retained the right to sell the same on any terms, or to permit his broker to sell at a reduced price .and at a reduced or reasonable commission. By assenting to a sale at a reduced price or on different terms, the owner did not agree or bind himself to pay the listing commission though he may have bound himself to pay a reasonable commission; that is, what his services were reasonably worth under all the circumstances. The express listing commission is earned only when a person is produced who is ready, able, and willing to buy in accordance with the express listing terms. A contract with a broker to sell land or to procure a purchaser is governed by *344the same rules as other contracts. It must be free and mutual, and the parties must agree upon the same thing in the same sense. In matters of dispute concerning a broker’s contract for the sale of land and services under it, judges and juries have a right to use their common sense and common knowledge.
Concerning variations from the listing terms of sale, the court instructed the jury to the effect that they must award the plaintiff the specified commission of $1.50 an acre, regardless of any variation to which the defendant assented. That was gross error. Under such a law if the defendant had assented to the sale of his land at $17.50 an acre, payable in five or ten years without any interest, he would still be liable for a commission of $1.50 an acre. But by the terms of the listing contract the plaintiff was to have $800 cash on every quarter section and 7 per cent on the balance of the price from the date of sale. By the terms of the sale defendant had no interest on the price from June 28 till November 15th, and for five years his interest on $9,000 was reduced from 7 per cent to 6 per cent. That was the same as reducing the list price $791.33. There is testimony that when defendant objected to the new deal which he had not authorized, the plaintiff promised to make it good from his commissions. Had he done so the chances are there would have been no expensive lawsuit.
In this case the complaint should have stated not only a cause of action on the express contract, but also a cause of action alleging the reasonable value of the services rendered and accepted by defendant. And the jury should have been given proper instructions in regard to each cause of action. Hence, in furtherance of justice within thirty days after the return of the remittitur the plaintiff may amend his complaint by adding to it a cause of action based on the reasonable value of the services rendered and accepted.