(dissenting). — I am unwilling to concur in the majority opinion. My views of the case are expressed in the former opinion which is reported in 121 N. W. 1058, and I do not care to repeat. I think the case is ruled by our previous cases. Some of these are reviewed in the majority opinion and are distinguished from the case at bar. I prefer that they be thus distinguished than that they should be professedly overruled. I think the distinction urged is exceedingly difficult. Moreover, the statement of the case for the -purpose of the distinction involves in my judgment a straining of the record to some extent. The real substance of the record is that the plaintiff obtained a judgment in the court below for $2,000 as an alleged agency commission for which there was no *24substance of consideration. It rested upon the merest nakedness of an alleged oral contract to pay. The contemplated sale was never consummated. The contract signed by McLeod was executory and was never performed. It was not enforceable against him because of his insolvency. In its essence the case comes, in my judgment, within the rules laid down in our previous cases which are discussed in the majority opinion.
The tendency of this holding is to lower the business standard of an agency broker and to permit a broker’s commission to become a mere matter of plunder. The plaintiff in this case was not even a broker, but was engaged in a wholly distinct line of work. His case is based upon an alleged express contract, and the verdict of the jury is such as to suggest the need of an additional paragraph to the statute of frauds.