The opinion in this case, which may be found in 206 Fed. 889, 124 C. C. A. 549, states the facts which condition the decision. The motion for a rehearing insists that the plaintiff should have been entitled to go to the jury because (1) it is an implied term of an ordinary contract between a broker and his principal that if the *886broker procures a customer able, ready, and willing to perform the contract .tendered by the principal, and the latter fails or refuses to make-or perform it on his part the broker is entitled to recover, and that there was substantial evidence in this case that the plaintiff procured such a customer, but the defendant refused to make the contract it had offered, and (2) that it is not indispensable to a recovery by the broker for such a breach that a contract legally binding be made between the customer and the principal, but it is sufficient that their minds meet on the substantial terms of their contract, and that the principal arbitrarily or capriciously refuses to make or prevent the making of the proposed contract, and that the record in this case presents substantial evidence of such a case.
Conceding the law to be as stated, there are nevertheless reasons which seem to us sound why the evidence in this case was insufficient to sustain a verdict in favor of this broker.. In the first place his agreement with the defendant was not the ordinary broker’s contract for a commission on the proposed sale or contract, but it was a unique agreement, in that it expressly provided in writing in the defendant’s letter of September 21, 1911, when and on what conditions only the plaintiff’s commission should be earned and paid.
. “We hereby agree to give you.” reads the accepted offer of the defendant, “in event of our making a sale, or sales contract, with M. W. Savage, of Minneapolis, at a price of thirty-five ($35) dollars per acre, a commission of five (5%) per cent., and a further sum of twenty-five thousand ($25,000) dollars, conditioned, however, upon the fulfillment of the contract by Mr. Savage; it being hereby agreed that the commission is not earned, due, or payable except upon the fulfillment .of the contract by Mr. Savage. When, we have received the net sum of three hundred thousand ($300,000) dollars in cash from Mr. Savage’s sales, there is earned, and will be paid to you, the sum of twenty thousand ($20,000) dollars, and a like sum will be earned and paid when a further sum of three hundred thousand ($300,000) dollars has been received by us, and so on, until you have received your full commission.”
The purpose of the second condition in this contract was not merely to fix the time of payment of the commission to be earned; its chief object was to fix the amount of the commission that would be earned under various circumstances and thereby the damages which the plaintiff could recover if the defendant made the contract with Savage, but the latter did not completely perform it. The proposed agreement with Ravage related to the sales of 108,000 acres of land for more than $3,000,000, to numerous separate purchasers of separate tracts, to be made during many months of time. Without this condition the pía in - tiff’s damages would have been uncertain and speculative in case of Savage’s partial failure to perform the contract, for who could have determined in such a contingency how many acres he would have sold if he had not failed to sell. It was to avoid this uncertainty that the defendant expressly conditioned its liability to the plaintiff for a commission upon the fulfillment by Savage of a sale or sales contract with him, and the receipt by the defendant from Savage’s sales of the net sums in cash specified in the contract, conditions of the fulfillment bf which there is no evidence in this record.
• Moreover, a second examination and consideration in the light of *887the law and the ingenious and powerful argument of counsel of the evidence upon the question whether or not the substantial terms of the proposed agreement between Savage and the defendant were ever agreed to by them has but confirmed our minds in the view that there is not in the record such substantial evidence that their minds met upon the vital terms relating to the interest to be paid by Savage and the percentage of cash and the manner of paying it as required the court to submit this case to the jury. The motion for a rehearing must accordingly be denied; and it is so ordered.