delivered the opinion of the Court:
Plaintiff was not the exclusive agent. He was operating in competition with other agents on equal footing with himself. Defendants were therefore in a position where they were required to treat all agents with equal fairness. Under such circumstances they were obliged to deal with the first purchaser brought by an authorized agent who was prepared to pay the price quoted the agent. The rule as to procuring cause is different where there are many agents, and where there is a single agent. In the latter ease, if the owner sells to a purchaser, procured through the efforts of the agent, for a different price than that quoted the agent, the owner will be liable for the agent’s commission, for the reason that the agent brought the purchaser and seller together, and he, therefore, was the procuring cause of the sale. Where there are a number of agents, however, the purchaser may be negotiating with different authorized agents of the owner, and, if so, the agent is entitled to the commission who first brings to the owner a contract satisfactory to him, and which the owner accepts, provided there has been no collusion between the agent and the owner to defeat another agent who has been negotiating with the purchaser.
That plaintiff had not closed negotiations with Porsberg on terms satisfactory to defendants before plaintiff left for New Yoi*k seems apparent from his letter to Porsberg, wherein he said: “If you decide you would like to buy on the terms which I mentioned to you, let me know at once and I will return and see if I can effect a deal for you; but please do not mention to anyone about the terms I quoted to you, as I was not at liberty *563to do as I did in the matter;” and to which Forsberg replied, “I would suggest that you return at the earliest moment and make arrangements for the deal under the best conditions.”' This was the last communication plaintiff had with Forsberg until after the sale had been consummated by Gadsby. We-think, therefore, that, inasmuch as plaintiff had not an exclusive agency, he can in no sense be held to have been the procuring cause of the sale.
The facts in this case are similar to those in Daniel v. Columbia Heights Land Co. 9 App. D. C. 483. In that case, the court, considering the liability of the owner as between the conflicting claims of agents, said: “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 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, notwithstanding 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 demanded 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.”
So, in the present case, the most that can be said is that plaintiff came very near making the sale, and might have done so had not Forsberg finally dealt with Gadsby. There is no evi*564■dence of any collusion on the part of defendants to prevent plaintiff from consummating the sale, or with the agent G-adsby to in any way prevent plaintiff from reaping the fruits of his -efforts to bring about a sale.
The only intimation of unfair treatment by defendants is the statement of plaintiff, in his testimony, that Ward Evans told him before leaving for New York, “Shinn, that’s all right. Mr. Forsberg is your client, and we will not have any falling •out. You come in when you get back and John, my brother, will be in town, and we will talk the matter over.” Plaintiff also testified that, in his conversation with Evans, he said to him, “Mr. Forsberg is now ready to buy the property. All he wants is a few days to raise the $10,000.” The latter statement is ■contradicted by plaintiff’s letter from New York, written before the controversy here in suit arose. Assuming, however, that Ward Evans made the former statement, it is not contended that -defendants knew Forsberg was the purchaser, and, under the .arrangement they had with their agents, they were morally bound to sell to the one who first produced a purchaser willing to pay a price satisfactory to them, and to pay him the commission. Assuming also that plaintiff told Evans that Forsberg was ready to buy the property, but wanted a few days to raise the •$10,000, it was far from closing a contract, for Forsberg, in ■order to raise the money, wanted time,—the very thing defendants had refused to grant plaintiff, for the reason that other, agents were trying to sell the property, and they were obligated, .as they expressed it, to sell to the first one who came prepared to purchase.
To sustain the contention of plaintiff would make it hazardous for an owner of property to place it in the hands of more than one agent. It would open the door to the most vicious ■collusion and fraud. An owner easily might be placed in a position where he could be compelled to pay double or treble •commissions. Viewing the evidence in the most favorable light, plaintiff cannot recover, for he neither made the sale nor was the procuring cause of the sale. One of these elements must -clearly appear before an agent can recover a commission when *565he is working in open competition with other agents. The law of this case is so well settled in this jurisdiction by Daniels v. Columbia Heights Land Co., supra, that further consideration is unnecessary.
The case was here before (Shinn v. Evans, 37 App. D. C. 304) upon a judgment for defendants based upon a directed verdict at the conclusion of plaintiff’s evidence. The judgment was reversed for the reason that plaintiff had testified that defendants told him they knew Forsberg was the purchaser before they signed the contract with Gadsby. Plaintiff did not so testify on this trial, but the evidence is all to the effect that defendants did not know whom the purchaser was when they signed the contract. The other ground upon which the judgment was reversed was that, from the evidence, it might well' be assumed that plaintiff was the only agent, and that it might further be inferred that Gadsby acted as the agent of the purchaser. On this trial, it appears by the uncontradicted testimony that there were a number of agents, of which fact the-plaintiff was advised, and that Gadsby was the agent of defendants, to whom they paid the .commission for making the sale.
The case was submitted to the jury upon the erroneous theory that from the evidence plaintiff might be found to have been the procuring cause of the sale, and therefore entitled to recover. In no view of the evidence was this issue of fact presented, and it was error to permit the jury to find a verdict upon a mere fiction.
The judgment is reversed, with costs, and the cause remanded: for further proceedings. Reversed and remanded.