*254Denied February 15, 1916.
On Petition fob Rehearing.
(155 Pac. 172.)
Mr. Jesse Stearns and Mr. Fred E. Smith, for the petition.
Mr. H. E. Slattery, contra.
Department 1.
Mr. Justice Burnettdelivered the opinion of the court.
3. The original opinion in this case disposed of the issue on the ground that no acceptance of the defendant’s offer was proven, and that nothing more than a counter proposition was disclosed. On the petition for rehearing we are concerned with the question of whether the letters between the parties introduced by the plaintiffs in evidence are sufficient within the terms of our statute of frauds to prove the contract upon which they rely. The amended complaint alleges, in substance, that in March, 1914, the defendant in writing duly subscribed by him employed and authorized the plaintiffs to sell or exchange his wheat farm of 1,440 acres, regularly described by legal subdivisions, and agreed to pay them $1,000' as commission if they negotiated an exchange of his land for other property. Other averments of that pleading relate to acceptance by the plaintiffs of the employment, their success in effecting a trade for other realty, and the refusal of the defendant to pay. The answer says:
“Except as hereinafter admitted, stated or qualified, the defendant denies each and every allegation within the amended complaint of the plaintiffs contained.”
*255This amounts to a complete traverse unless the new matter stated by the defendant makes a case for the plaintiff.
4. The only averment by the defendant affecting the question under consideration is this:
“The defendant states that the only writing in any way existing by and between the parties hereto is the original of which ‘Exhibit A’ hereto attached is a copy, and that the same does not meet the requirements of the statute of frauds, and for that reason the plaintiffs are not entitled to recover; that said ‘Exhibit A’ is into ■this answer incorporated and made a part hereof as though fully set forth herein. ’ ’
“Exhibit A” there mentioned is the letter of Rudolf to the plaintiffs, dated March 16,1914, and quoted in the former opinion. The excerpt from the answer amounts to an affirmative plea of the statute of frauds, and does not excuse the plaintiffs from proving the allegations of their complaint.
5. It will not suffice to show even the greatest efforts to sell or even the accomplishment of such a purpose unless there is a contract to which such acts can be applied as perfórmance on the part of the plaintiffs. Without a lawful agreement to support the same, no labor, however valuable, by one for another will make the person performing it more than a mere volunteer not legally entitled to compensation. Unless f orbiddeu by positive statute, the courts have indeed gone far to imply from the circumstances of valuable service an agreement on the part of the recipient to pay for them. But, however morally deserving the plaintiffs may be, we cannot override the express mandate of the law in their interest and impose upon the defendant a liability which the legislative department of the government has *256explicitly said shall not exist unless it is evidenced in a certain prescribed manner.
6. The defendant’s letter is quoted in full in the former opinion, but for brevity we here adopt the condensation of it appearing in the petition for rehearing:
‘ ‘ Sir: I seen your ade in the Sunday Oregonian that you had land to trade for a wheat ranch. My farm is five miles north of Kahlotus, Franklin County, Washington; consists of 1,440 achers, 1,300 in cultivation; S. W. % of Section 12, all section 13, all of section 14, Town. 14 R. 34. I will give $1,000 com. on a trade or I will give you $1,500 on cash sale.
‘ ‘ [Signed] W. Rudolph. ’ ’
It is upon this letter subscribed by the defendant whom they seek to charge that the plaintiff’s rely to satisfy our statute of frauds in their endeavor to prove their complaint. Much other correspondence between the parties appears in the report of the testimony, but nothing signed by the defendant comes any wise nearer the requirements of the statute than this first letter. In plaintiffs ’ communication of April 6,1914, they state they send him therewith a blank contract for his signature, and on April 18, 1914, they inquire when he is going to give them the contract, but no such document appears in the record. It would seem from this that the plaintiffs were conscious they had no contract with the defendant as contemplated by the law. On this point the bill of exceptions states that the plaintiffs informed the court at the tria] that they relied upon the above letter and their answer to it, both of which are quoted in extenso in the original opinion, as constituting the agreement supporting their claim. In applying the statute to this letter it is well to recall as pointed out by Mr. Justice Benson in Taggart v. Hunter, 78 Or. 139 (152 Pac. 871), after exhaustive research, that only *257eight other states have statutes declaring certain contracts void unless written in a prescribed form. Only in Alabama, Minnesota, Nevada and "Wisconsin, besides Oregon, do the statutes require the consideration to be expressed. Taken altogether, our statute of frauds seems to be the most stringent in terms of all in the United States. Our law declares contracts of the kind here involved to be void unless, among other things, the consideration is expressed. Although there may have been a consideration in fact, yet the statute is not satisfied unless it is stated in the writing subscribed by the party to be charged.
‘ ‘ Consideration is that which moves from the promisee to the promisor at the express or implied request of the latter in return for his promise”: Clark, Contracts (3 ed.), § 61.
It may also be said to be that which induces a party to act or promise. What then is expressed in the defendant’s letter which moved him to promise to pay $1,000 to the plaintiffs ¶ Nothing is revealed as moving from them and persuading him to promise. Neither is there stated any advantage gained or to be acquired by him which causes him to promise. The sum of money named is no consideration to him. Parting with it as stated is not to his betterment. His agreement cannot be its own consideration. As part of his offer he makes a tentative promise to pay $1,000; but he does not express any consideration for it. An acceptance is a consideration supporting a contract initiated by an offer; but in cases within the statute, that, like any other consideration, must be expressed in the writing by which the party to be charged is bound. This rule is sub-served by considering a letter containing the offer and the answer accepting it as constituting one agreement, *258although inscribed on separate papers; but, as we have seen in the original opinion, the acceptance must exactly coincide with the offer else there is no meeting of minds so essential to any agreement. This condition is not fulfilled by any writing in the record in this case.
The letter is an offer; but throughout the whole correspondence there is never a point where one party says, “I offer this,” and the other party replies, “I accept it.” Apparently the plaintiffs acted on the assumption that the defendant’s first letter was a sufficient contract, and directed his attention to various tracts they had for sale, but, so far as disclosed by the letters, none were acceptable to him for one reason or another. Finally, he withdrew the land from market. If we rely upon the writings, as the statute says we must, nothing is disclosed but fruitless negotiation.
7. The law requires three conditions to support an agreement to pay commission to a real estate broker. As applied to this case, they are: (1) A written note or memorandum of the agreement; (2) expression of the consideration in the writing; (3) signature of the defendant. Whatever may be said of the first and third there is nothing to meet the second essential. The legislature has declared that in such instances the agreement is void, and not only so, but has gone further, and, in words differentiating our law from that of most other states, forbids any other evidence of the contract than the writing itself, unless it is lost or something of the kind.
The deduction is that in Oregon, under the present state of the law, there can be no implied contract to pay a commission to a real estate broker. Unless he has an express contract complying with the statute of frauds, he is as helpless in his effort to recover compensation at law as though he endeavored to prove á *259conveyance of land without a deed, or a bequest without a will. The plaintiffs have relied for recovery largely on their efforts to find a purchaser for the defendant’s land, and claim to have produced the one to whom he sold; but performance does not prove a contract of which the law says a writing in terms prescribed shall be the only evidence and no other shall be received.
Taking the defendant’s first letter and the answer to it from the plaintiffs for the agreement, as counsel informed the court they were (and no better situation is disclosed in any of the other letters), the fallacy of the contention of plaintiffs may be illustrated by this query: Suppose, without giving the plaintiffs a reasonable time to effect a sale or exchange, the defendant had sold his land to someone unknown to plaintiffs the next day after receipt of their answer to his first letter; could they have recovered as for a breach of an agreement ? The answer must be in the negative.
8. The statute was designed as a protection against importunate and unscrupulous real estate agents who thrust themselves upon anyone having realty for sale and claim commissions under any and all circumstances. Tacked as it was to the statute of frauds, it is a very drastic measure, and in this instance it may have operated harshly upon deserving men; but we cannot disregard the plain words of the law. The only relief from it must be found in a change of the legislative enactment by that department of the government.
The petition for rehearing must be denied.
Reversed. Rehearing Denied.
Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Benson concur.