(dissenting further). The foregoing dissenting opinion was prepared and filed when the views of the majority members were expressed in the opinion written by Mr. Justice Robinson. Afterwards a rehearing was ordered and the case reargued, and, while the majority members adhere to the first opinion, they have deemed it necessary, or at least desirable, to reinforce or supplement it with an additional opinion. The additional opinion quotes certain excerpts from the testimony as a basis for the conclusion that the plaintiffs and defendant, so far as the sale of this particular land was concerned, abandoned the arrangement between them, “and that they did not intend their contract to be applicable thereto.”
The transcript of the evidence in this case covers some eighty-five pages of typewritten matter, and, of course, it is impossible to get a correct understanding of the arrangement between the ■ parties or of their understanding of it from a few questions and answers. The question is: What does the entire evidence show that the agreement was, how did the parties understand it, and what did they do under it ?
It will be noted that the last sentence in the first quotation from Serumgard’s testimony reads thus: “Mr. Lonnevik and Mr. Awes
went into the other office and looked it over.” The next question and answer were as follows :
“Q. What do you mean by looked it over?
“A. The listing of the land, description of the land, and the memorandum of the improvements and quality of the lands and the buildings, fences, and so on. We had a memorandum of these things.”
Lonnevik testified as follows with respect to this matter:
“Shortly after, on that same day, we made the agreement with Mr. Awes, he asked me if we had any lands listed up at that time, and I handed him this list or this description of that land of Mrs. Mooers.
“Q. The memorandum of the listing ?
“A. Yes, sir.
“Q. That wasn’t signed by Mrs. Mooers, however?
“A. I don’t think it was.
“Q. And what did Mr. Awes say then, if anything, when he took it ?
“A. Well, he read it over, and he said he was going over to see Mrs. Mooers about it.”
*143Lonnevik further testified that Awes took the memorandum with him and that he never returned it to the plaintiffs.
This testimony most graphically presents the interpretation which the parties themselves placed upon their agreement as applied to this particular tract of land. The interpretation was contemporaneous with the making of the agreement. Immediately after the agreement had been made, Awes asked if they “had any lands listed up at that time, and, he says, H want your best snaps, that is your best deals now.’ ” Lonnevik thereupon handed him the memorandum of the land belonging to the Mooers’s estate. There is no contention that there was any misunderstanding as to the actual ownership of this land. Both parties knew that it belonged to the Mooers’s estate, of which Mrs. Mooers was the administratrix. They knew that Mrs. Mooers had indicated that she was willing that the land be sold if it would bring $25 per acre. But both parties knew that the administratrix could not fix any definite price thereon. They knew that it could be sold only through proceedings had in the county court; that notice of such sale must be given; that all the world would have an opportunity to bid at the sale, and that the land would go to the highest bidder. The defendant made-no objection to the condition of the title. He made no intimation that the land should be excluded from the arrangement just made. He examined the memorandum and retained it, and said he was going over to see Mrs. Mooers about it. The evidence further shows that he did go and see her. Not only did the defendant avail himself of the information thus given, but he also later had the plaintiffs furnish a man and an automobile and take him out so that he could examine the land.
This all took place with the unquestioned knowledge on the part of the defendant that this land belonged to the Mooers’s estate, and that in any event title must be procured through a sale by the administratrix in the manner prescribed by law. Can there be any reasonable room for doubt but that when the plaintiffs called defendant’s attention to the Mooers’ “snap,” and when the defendant looked over the so-called list, which contained a description of the land and the buildings and improvements thereon, that both parties assumed that this was within the terms of the working agreement just formulated? Can there be any serious question but that when the defendant later availed himself *144of plaintiffs’ services in taking him out to examine the land, an & locating the boundaries thereof, that both parties assumed that it was one of the deals covered by the arrangement formerly made ? I think not. Nor do I believe that there is anything connected with the actual purchase of the land by the defendant which entitles him to say that the deal was not within the terms of the agreement, as intended and construed by the parties.
It should also be remembered (as stated in the former dissent) that in all matters arising between these parties, the defendant closed his own deals with the owners of the lands. He did not require the plaintiffs to do this. He merely “took lands from their lists.” It will be noted that in this case he took the so-called list or memorandum, and said, “I will go and see Mrs. Mooers about it.” He did go and see her. If the title to the property had been in her name, and if the property had been hers to sell, he doubtless would have closed the deal, the same as he closed other deals for lands “taken from plaintiffs’ lists.” He did, however, proceed to close the deal in the only way in which it could be done, namely, by submitting a bid to Mrs. Mooers as administratrix. When we consider the character of the title to this land there is no essential difference between what defendant did in this case, and what he did in other cases where he acquired title to lands “taken from plaintiffs’ lists.” -
The majority members persist in treating the relation between the parties to this action as one between a real estate broker and a person who employs such broker to purchase for, or obtain the sale to, him of certain land at a stated price, on certain fixed terms. In S3ich case, of course, the broker has not earned the compensation stipulated to be paid him unless he makes the purchase, or procures the sale, at the price and on the terms stated. In other words, the broker cannot recover the consideration agreed to be paid him for his service until he has performed the service. But, as already indicated, that was not the relation between the parties to this action, and that was not their contract. Here the plaintiffs did not act as intermediaries in negotiating the sale of land to the defendants. The defendant merely availed itself of the information received from plaintiffs’ lists, and whatever services were incident thereto, and negotiated and closed its own deals with the different owners. That was true of every deal that was consummated for land which defendant “took from plaintiff’s lists.”
*145As was aptly remarked by the trial court (in the memorandum opinion set out in the former dissent), “We are not making the contracts for the parties.” The parties have the constitutional right to make their own lawful contracts. All contracts must be so interpreted as to give effect to the mutual intention of the parties as- it existed at the time of contracting so far as the same is ascertainable and lawful. Comp. Laws 1913, § 5896. Even a written contract, the language of which is ambiguous or doubtful, may be explained by reference to the circumstances under which it was made and the matter to which it relates. Comp. Laws 1913, § 5907. In interpreting such contracts it is always competent to take into consideration the construction whicli the parties themselves have placed upon it. 6 R. C. L. p. 852, § 241.
Basing their argument upon the same basic error as- to the nature of the relations and contract between the parties, already referred to, the majority members devote considerable space in the additional opinion to the bids submitted respectively by the defendant and by Serumgard. In this connection it is well to note that the defendant said nothing to Serumgard about its intention to put in a bid for the land. He had no way of knowing that defendant would make a bid, unless it informed him. There was, of course, no obligation on the part of the defendant to purchase any of the lands “from plaintiffs’ lists.” The only obligation it had assumed was to pay $1 per acre for each tract of land it “took” from such lists. While, as I construe the contract between the parties, -the bids are of no particular consequence and have no material bearing on plaintiffs’ right to recover, it will be noted that the' bids of Awes and Serumgard were only a few cents per acre apart. And the evidence shows that the land was listed with the plaintiffs, hy Mrs. Mooers, on April 3, 1916, at which time she said she would accept $25 per acre for it. The sale was not made until July 24th. If there were any crops on the land they most likely were put in after the land was listed. And while there is no specific testimony to that effect, it was assumed in questions asked upon the trial that there were crops upon the land; and upon the oral argument it was stated hy Serumgard (who argued the case in person), in response to questions of comments made by members of the court, that the bid submitted by Serumgard represented $25 per acre for the land, *146and that the amount in excess thereof represented the value of the seed which the estate had furnished in putting some of the land into crop that spring, and which crops were then on the land. The correctness of that statement was not denied by appellant’s counsel.
It is stated in the supplemental opinion that Serumgard acted as attorney for Mrs. Mooers in securing the license to sell. This statement, while in a sense true, is likely to be misunderstood unless explained. Serumgard was not the attorney for the estate. He did not act as Mrs. Mooers counsel in the probate proceedings. It is conceded that another firm of Devils Lake attorneys were in charge of the proceedings for the probate of the Mooers’s estate. Serumgard’s only connection with it arose out of the listing of the land with the plaintiffs and the proposed sale thereof. In order to make it possible to have the land sold it was necessary to make the sale through proper proceedings in the probate court, Mr. Serumgard, merely prepared the petition for license to sell and the papers incidental thereto. The record affirmatively shows that he did not even prepare the order confirming the sale of the administratrix’s deed.
It seems to me that the evidence in this case justified the jury in finding that the agreement between the parties was what they said it was. The parties contemporaneously with the making of the agreement construed it as applicable to the land in controversy. The defendant availed itself of the information given by plaintiffs; and (as in other deals where it acquired lands taken from plaintiffs’ lists) it closed the deal therefor,—closed it in the only manner in which it could be closed. And, according to Lonnevik’s testimony (see former dissent) Awes, after having purchased the land, recognized that the defendant company was indebted to the plaintiffs for compensation as a result of the acquisition by the company of the land in question.
The case was submitted to the jury, not upon the few isolated questions and answers set out in the per curiam opinion, but upon all the evidence contained in the eighty-five pages of the transcript. The jury saw the witnesses, and heard their story, and under proper instructions, said that the agreement between the parties. related to and embraced the transaction in question. The learned trial court, after full reflection, on motion for a new trial said there was sufficient evidence to justify the jury in arriving at this conclusion. In my opinion this *147court is not justified in saying that the conclusions of the jury and of the trial court are contrary to, and have no substantial support in, the evidence.
Bronson, J., concurs.