delivered the opinion of the Court:
If it be conceded that plaintiff’s negotiations with the owner of the third lot (12) and their advertisement in the newspapers and on the blackboard at their office door led up to and were the chief inducing causes of the sale that was afterwards made, still, it does not follow that they thereby became entitled to recover commissions of the defendant.
There is an essential difference in established facts between this case and that of Bryan v. Abort, 3 App. D. C. 180, which takes it out of the rule therein laid down. There the owner employed or authorized but one agent to sell his land, reserving expressly, that which the law implied, the right to sell it himself to any purchaser not procured by the agent. The agent found the buyer, referred him to the owner for a reduction of price, and was the efficient cause of his buying, although the owner himself made the bargain. He had no other agent, paid no commission to any one else, and sought to retain the same for his own profit. Notwithstanding he claimed that, at the time of closing the sale, he did not know that the agent had found the purchaser and sent him to him, the court thought it unjust that he should take the benefit of the agent’s labor and skill without making compensation therefor. And whilst the owner’s right to sell his own land to a purchaser found by himself without coming under obli*489gation to the agent by virtue of his employment to sell was fully recognized, it was thought that, under all the circumstances, it was his duty to the agent to inquire whether the purchaser, in that instance, had in fact been found by the agent.
In the case at bar, the defendant, after the arrangement of agency made with the plaintiffs, thought it fair to continue the long standing agency of Mr. Parker. Remembering the promise made to plaintiffs in respect of their claim to commissions, defendant’s president called on them, showed them a letter that he had prepared for transmission to said Parker and obtained their consent to the arrangement therein made for double agency. It was distinctly agreed, as stated in the letter to Parker, that the commission should be paid as between them respectively, to “ whoever sells the property.”
By consenting to this new arrangement, no matter what the previous understanding had been, the plaintiffs incurred the risk of competition and the chance of the loss of a commission even after the trouble and expense of advertising had been incurred.
Taking into consideration, as we reasonably should in this new situation, the rights and interest of the agents, respectively, together with the just right of the owner, while acting fairly, to immunity from double liability, the obligation to pay the commission must be confined to the terms in which it was expressed. As expressed, it was not to pay to one who might, by advertising, find, and, by interviews, stimulate a purchaser; but to the one who should produce him and consummate the sale. Assuming that plaintiffs found the purchasers, directed their attention to the property, and really induced them to make a final offer to the other agent, nothwithstanding the evidence of one of the purchasers to the effect that they had long known the property and desired to buy it, and had only called on plaintiffs because of their advertisement of a price lower than ever *490demanded before, the fact remains, nevertheless, that they did not actually sell the property. The most that can be claimed is that they came very near making the sale and might have done so had the buyers not finally dealt with the rival agent.
Having made this arrangement, it became the duty of the defendant to act impartially between the agents, and not to collude with either, but to pay the commission, as promised, to the one that should produce the buyer and close the sale at its terms.
There is no evidence whatever tending to raise an inference that defendant acted improperly in the transaction, or failed in its duty to the plaintiffs. Whatever injury they may have received, or however unfairly they may have been treated by others, there is no evidence whatever of defendant’s collusion in a scheme, if any existed, to prevent them from obtaining the fruits of the sale.
Defendant had promised the commission to either agent who should sell the property. Mr. Parker produced the purchasers and closed the sale, and defendant paid him the commission without notice of any claim thereto on the part of the plaintiffs. Even if it had been informed of plaintiff’s claims, before making payment to Parker, there could hardly be a different result; for, as we have seen, the obligation was to the. one who actually sold the property, and to no one else. We do not think defendant could have been called on to inquire into and adjudicate the conflicting claims of the agents, founded on the state of facts aforesaid.
It would be unreasonable, and unjust to the owner of property who might, in accordance with what seems to be a common usage, commit its sale to more than one agent, upon the same terms as in this case, to compel him, upon a sale consummated in fact by one, to investigate the respective claims of each agent and to decide between them at his peril. If that was required of him he could have but one agent, else he could not close a single sale in safety. On the other *491hand, we think it reasonable and just that the risk of loss should fall upon the agent who enters into an arrangement where, competition being expressly provided for, all of its various chances ought to be considered as assumed.
Suppose that, under such conditions, a buyer’s attention is attracted for the first time to a piece of property by the advertisement of one of the agents, followed by interviews and negotiations. No sale is made, but the party subsequently makes up his mind to buy. Then, desiring to favor another agent, and turn the commission to him, he goes to that other and concludes a purchase. Could the owner, when informed of all the facts, defeat the claim of the agent who has in fact made the sale ? We do not think that he could.
Whatever may have been the moral obligation of the buyers, or their representatives, in this case, they were under no legal obligation to contract through the plaintiffs. In fact, however, they were not ready to buy at that time, and their desire to acquire the property arose long before they saw the plaintiff’s advertisements. Subsequently, when they had made arrangements to borrow money for the purpose, they preferred, for reasons not explained, to make the purchase through the other agent.
It is hard upon plaintiffs to lose the profits they had labored to make in the sale of the property; but.that was one of the incidental risks of the competition they had entered into, and affords no reason why the defendant, who had no agency in that loss, should be required to make it good.
Since reaching a conclusion in this case, we have been gratified to find that the same doctrine has been enounced by the Supreme Court of New Jersey in a well considered case wherein the' facts are even more favorable to the plaintiff’s contention. Vreeland v. Vetterlein, 33 N. J. L. 247.
Finding no error in the record, we must affirm the judgment, with costs, and it is so ordered. . Affirmed.