(dissenting). This is an action to recover from defendant $565 as a balance due on a commission for an abortive sale of 144 acres of land in Diclcey county. The land is about twenty miles east of Ellendale and is adjacent to the James river. In the summer of 1919 the land in question was owned and occupied by defendant and he listed it with the plaintiffs for sale at $90 an acre net to him. One of the plaintiffs lived in Nebraska and not far from the home of one Mayden, to whom he tried to sell the land at $100 an acre. May-*220deu went north, saw the land and agreed to take it at $100 an acre on condition that defendant take from him a lot in Denver, Colorado, at $5,000. The barg'ain was concluded and Mayden paid earnest money, $950, from which $300 was paid on the commission. To promote the sale the plaintiffs agreed to reduce their commission $575. The contract was that on November 1, 1919, Mayden should pay defendant, at the First National Bank of Oakes, $2,000, and give defendant a mortgage on the land for $7,000 and convey to him the $5,000 property in Denver. Conveyances were made in escrow, but they were never delivered because that Mayden repudiated the contract and refused to perform it. With the escrow papers there was given an order to the bank to pay the plaintiffs from said $2,000, the commission of $565. That order was lost and it seems the main dispute was on the form or wording of the order. Soon after making the preliminary contract it seems Mayden discovered that the land was subject to overflow from the James river. He claimed that he was deceived and claimed damages, and that was the cause given for his refusing to perform the contract. He was not responsible. There was no evidence that he had any property in this state; no evidence showing that he had any property elsewhere, or that it was in any way feasible for the defendant to enforce the contract. Hence, the defendant wisely concluded to abandon and cancel the contract. The testimony of the defendant is that the plaintiffs never demanded the commission or spoke to him concerning any commission till a year and a half afterwards; that then Mr. Neff, one of the plaintiffs, came to him smiling and said that he had never received that commission, and defendant made answer that he had never received the $90 an acre for the land.
Concerning the order for the payment of $565 on commission, the plaintiffs testify that the order was absolute and unconditional. The defendant and one disinterested witness testified to the contrary and testified that the order was for payment of the commission out of the $2,000. On that question the testimony of the defendant and his witness is positive, circumstantial, and convincing. The jury believed the defendant and had a right to believe him; but the trial court took the position that when the preliminary contract was made the commission had been earned and that there was no consideration for any *221conditional contract in regard to tbe payment of tbe commission. But as tbe evidence shows beyond question, tbe plaintiffs never produced a purchaser ready, able, and willing to buy tbe land at $90 an acre. Tbe preliminary sale contract proved abortive and it was abandoned and repudiated. Tbe defendant bad no means of enforcing it. He was under no obligation to expend good money by an uncertain suit in Nebraska to enforce such a contract. Tbe verdict of tbe jury was right and conseionable. Tbe judgment and order contrary to tbe verdict should be reversed.