(dissenting). This is an appeal from a judgment for $5,000 against the defendant for alleged services rendered in regard to the sale of certain land under a special contract. As it appears, for the sale of certain land at the sum of $70,000, the defendant promised to pay $5,000. The plaintiff never produced a purchaser ready or willing to pay $70,000, or any sum in excess of $65,000. Indeed, it was with considerable effort and some expense on the part of defendant himself that he was able to make a sale of the land at $65,000. The contention of plaintiff is that inasmuch as defendant made a deal with the person whom the plaintiff tried to secure as a purchaser and made the sale for a reduced price he, the defendant, became liable to pay a commission of $5,000 in accordance with the terms of the special contract, and the court did, in effect, charge the jury that in ease there was an agreement to pay a commission of $5,000 for a sale of $70,000, and a sale at a less sum without any agreement to change the commission and if the plaintiff obtained a purchaser ready and willing to purchase the land upon different terms than first stated, and such modified terms were assented to by the defendant. The plaintiff in the absence of any new agreement is entitled to the compensation fixed by the original contract. That instruction is manifestly erroneous and the court repeated it over and over again so as to impress it on the mind of the jury.
Under such a law if the defendant had sold his property for $5,000 and no more, the plaintiff would be entitled to recover the $5,000 as his commission. Indeed, in case he made any sale whatever, even *201for $1,000, or $1, the plaintiff would still be entitled to recover tbe same $5,000.
And so, if a party should contract to pay $1,000 for the building of a two-story house worth $4,000, and then cause the contractor to make it a one-story house worth $2,000, the carpenter or contractor would still be entitled to a compensation of $1,000 in the absence of a special contract fixing a different compensation, but such is not the law. For the building of a one-story house, the carpenter would have no right to recover on a special contract for the building of a two-story house. For the one-story house his right to recover would be limited to the reasonable value of his services.
And so it is in every case where a party sues to recover on a special contract, he must prove a substantial compliance with the terms of the contract. The charge of the court was manifestly wrong and contrary to the decision of the court in Paulson v. Reeds, 39 N. D. 329, 167 N. W. 371.
It furthermore appears that in charging the jury the court read to them the argumentative complaint which might well have been received as a part of the charge of the court. In charging a jury there is no occasion for reading the pleadings of either party, or for repeating the same thing over and over again in different language. The charge should be short and pointed and limited to the issues in the case. A judge seldom gives a charge without overdoing it. There is always a disposition to talk too much.
The judgment should be reversed.