(dissenting). In my opinion, my Brother Steere has not answered the contention of appellant that there is no testimony tending to prove that plaintiff could have sold the property to Patterson or to anybody for more than $2,800. Unless it made *582a sale for a greater sum, plaintiff was not entitled to a commission. Plaintiff had no exclusive right to sell the property. It knew the owner’s price and that it or any one could secure the property from the owner, at any time, for $2,800. A jury has awarded plaintiff a commission of $50, but upon no testimony that plaintiff might have sold the property to Patterson for $2,850. The testimony just as well sustains an award of $75, or of $25, or of $5. It is evident the jury thought defendant had acted rather meanly, and that he ought to pay something on account of his behavior. But plaintiff sued to recover a commission, which, because of defendant’s improper action, it had lost..
The judgment should be reversed, and no new trial granted.
Bird, J., concurred with Ostrander, J.