On Petition for Rehearing.
Birdzell, J.In petition for rehearing counsel for the appellant renew the main argument advanced upon the hearing, to the effect that the decision in this case is necessarily controlled by the prior decisions of this court in Grangaard v. Betzina, 33 N. D. 267, 156 N. W. 1035, and Paulson v. Reeds, 39 N. D. 329, 167 N. W. 371. As we interpret the facts, however, this case falls clearly within the widely recognized rule that, where a broker, who is employed at a stipulated commission to sell lands on given terms, finds a purchaser with whom the seller negotiates a sale upon terms and conditions differing from those named. *202to the agent, the agent will still be entitled to his commission if he is the efficient cause of the sale and if the transaction is consummated while he is still acting as agent, and without.any change in the commission. That the authorities generally support and adhere to this rule will be seen by referring to the following citations: 9 C. J. 600-602; 19 Cyc. 249, 250: 1 Clark & S. Agency, § 361; 2 Clark & S. Agency, § 773; note in 34 L.R.A. (N.S.) 1050; Jones v. Adler, 34 Md. 440; Grether v. McCormick, 79 Mo. App. 325; Wetzell v. Wagoner, 41 Mo. App. 509; Jennings v. Overholt, 186 Mo. App. 505, 172 S. W. 449; Duncan v. Turner, 171 Mo. App. 661, 154 S. W. 816; Shober v. Blackford, 46 Mont. 194, 127 Pac. 329; S. E. Crowley Co. v. Myers, 69 N. J. L. 245, 55 Atl. 305.
As we view the prior decisions of this court, referred to by counsel for appellant in his petition, none of them can.be said to conflict with the principle above stated. In fact, in Paulson v. Reeds, upon the last two appeals, the rule which, in our judgment, is controlling in the case at bar, was tacitly recognized. See Paulson v. Reeds, 33 N. D. 141, 156 N. W. 1031, and Paulson v. Reeds, 39 N. D. 329, 167 N. W. 371. The reversals were necessary in both appeals for the reason that, under the instructions given, the jury were practically directed to return verdicts for the full amount of the commission claimed, regardless of any change that might have been agreed upon by the parties at the time the sale contract'was executed. Upon the last appeal the court was unanimously of the opinion that the jury must be given the right to determine whether or not a change had been effected in the commission agreement. Beference to the dissenting opinion of Mr. Justice Grace will disclose that the only difference of opinion was as to whether or not, under the instructions, the jury could have taken the alleged change into consideration, the majority of the court being of the opinion that it could not, whereas Mr. Justice Grace interpreted the instructions otherwise.
Of the authorities cited in support of the rule, which we regard as decisive of this case, the case of S. E. Crowley Co. v. Myers, 69 N. J. L. 245, 55 Atl. 305, perhaps most aptly illustrates the principle and the distinction, as will be seen in the following paragraphs of the syllabus :
“2. When the authority conferred is to sell at the price of $70,000, *203the owner may decline to accept a proposing purchaser whose offer is to buy the lands at the price fixed to be paid, not all in cash, but in part by the conveyance to the seller of other lands at the price of $30, '000. But if the owner accepts such an offer, the agent is entitled to his •commissions.
“3. If the owner, upon, receiving such an offer, accepts it on an agz’eement with the agent that he shall not be entitled to or receive commissions upon the price at which the lands are taken in exchange until the agent has procured a satisfactory purchaser for such lands, and the agent has failed to do so, a defense available in an action for ■commissions is disclosed upon, a proof of the agent’s failure. Whether the acceptance of the owner was upon such a condition, if contested, presents a mere question of fact.”
In the case at bar, there was no evidence that there was any agreement reached, involving a change in the commissions, and in this respect the case differs both from. Paulson v. Reeds and S. E. Crowley Co. v. Myers, supra. But it comes directly within the principle supported by all the authorities above cited.
The petition for rehearing is denied.