delivered the opinion of the Court:
Appeal from a judgment for the defendant, William II. Hayden, appellee here, in the supreme court of the District in an action by the plaintiff, Cissel, Talbot, & Company, appellant here, for the recovery of $6,750, alleged to be due the plaintiff as its commission for procuring a purchaser for certain real estate belonging to the defendant.
The evidence for the plaintiff corporation tended to show that the defendant authorized it to sell his premises, 912 F. street, N. W., in this city, for the sum of $225,000, and that the commission for selling was to be 3 per cent; that agents of the plaintiff called upon the defendant at about 11 o’clock in the forenoon of March 1, 1912, and notified him that they had procured a purchaser for his property upon the terms previously agreed upon, and that this purchaser was then ready to enter into a binding contract; that the defendant informed them that he was not quite ready, but would see them the next day; that thereafter the defendant informed plaintiff’s agent that, at the time of the above interview of March 1st, he had already sold the property to a purchaser other than that procured by the plaintiff.
The evidence for the defendant tended to show that he had never authorized the plaintiff to procure a purchaser for his property, and, further, that he himself entered into a binding contract for the sale of said property prior to the interview with plaintiff’s agents on said March 1st. It was subsequently ad-*479milted in open court in behalf of the plaintiff that the sale of the property by the defendant was a bona fide sale and made at the time claimed.
The plaintiff requested the court to instruct the jury, in effect, that, if they should find that the defendant authorized the plaintiff to procure a purchaser for his property, and that the plaintiff did procure such a purchaser upon the agreed terms, that the plaintiff was entitled to recover “even though the sale was not consummated by reason of the failure of the defendant to consummate the sale.” The refusal of the court to grant this prayer is assigned as error.
There was no contention on the part of the plaintiff that it Avas an exclusive agent. In other words, the defendant was not only free to deal with other agents, hut to effect a sale himself. Where there are a number of agents, “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.” Evans v. Shinn, 40 App. D. C. 557. The same reasoning is applicable here. The defendant was free to negotiate the sale of his property, and, having effected such a sale before the receipt of noticie by the plaintiff that it had procured a purchaser, the plaintiff was in no better position than it would have been had another agent first reached the defendant with a satisfactory contract. Had the defendant sold the property to the purchaser actually found and stimulated to the purchase by the plaintiff, a different case would be presented. Bryan v. Abert, 3 App. D. C. 180. Since the instruction requested by the plaintiff entirely ignored the sale made by the defendant, it Avas properly refused.
During the argument of the case the plaintiff’s counsel questioned the bona tides of said sale by the defendant. Thereupon the court suspended the trial for the purpose of allowing the introduction of other eAudence upon this point. The plaintiff concedes that this was well within the poAvers of the court. The record further recites: “The court, realizing that this would *480necessitate the adjournment of the case at bar for at least the balance of the day, allowed two of the members of the jury sitting in the case at bar, to sit upon a case that was then upon the call of the court, namely, the case of--, * * * which case was finished and verdict rendered by about 11 o’clock on the following morning; namely, on April 22, 1912. There was no misconduct suggested on the part of the two jurymen who sat upon the other case.”
The action of the court in permitting these two jurymen to sit in another case before the termination of the trial of this case is assigned as error. It is conceded by counsel for the plaintiff that such a practice has been followed in the court below but always with the consent of counsel. It is urged that such a practice tends to distract the attention of jurors from the consideration of the first case which they were sworn to try. Upon the facts before us, we are clearly of the opinion that there was no abuse of discretion by the learned trial justice. It does not appear that the trial of this ease was delayed, nor does it appear that the second case involved questions similar to those here in issue. In other words, so far as the record discloses, the short service upon the second jury by these two jurors no more disqualified them than attention to business or indulgence in various forms of amusement would have disqualified the other ten.
Judgment affirmed, with costs. Affirmed*.