concurring in part and dissenting in part:
I respectfully dissent from that part of the majority opinion which affirms Hoppe’s judgment against Shell, but concur in that part of the majority opinion affirming the judgment in favor of Husky and against Hoppe. Viewing it in its most favorable light, the evidence which purports to support the trial court’s finding fails to establish a brokerage contract between Hoppe and Shell.
Hoppe had one direct contact with Shell. That was “about a five minute” conversation with a representative of Shell whose name he could not remember and whose recommendation *582Hoppe admitted would have to be approved by higher authority. During the brief telephone conversation Hoppe inquired about the sale price on the property in which the prospective buyer Husky was interested and was told by Shell’s representative that in his personal opinion the price should be between $250,000 and $260,000. Hoppe then inquired if that price included a commission. “Shell doesn’t like to pay a commission” was the representative’s answer. Hoppe then responded, “Well, you mean it’s got to be net to you, then?,” and the representative said “that’s right”. After that conversation Hoppe sent an unanswered letter to Shell, and advised Husky that the sale price on the desired property was $275,000. Subsequently Husky purchased the property directly from Shell. Upon Shell’s refusal to pay a commission Hoppe sued claiming a $15,000 fee.
If Hoppe had an intention of holding Shell to an employment contract he should have had something more definite than his own inference that Shell was agreeing to employ him and pay a commission simply because Shell’s employee with whom Hoppe had the telephone conversation did not advise him in a harsh manner that it would not do so. It is not contended by Hoppe that he had any further conversation or negotiations with Shell other than an unanswered letter which he sent to that company.
Real estate brokers’ employment contracts are to be treated in the same manner as other contracts. There must be a meeting of the minds, consideration, mutuality and certainty. Here there was no meeting of the minds or mutuality because it was never Shell’s intention to hire Hoppe and their employee told him so, albeit in a polite manner. To allow Hoppe to recover one penny as a commission in this case will make it possible for a broker, upon the flimsiest assumption of consent, to foist his services upon a property owner and extract a commission.
Assuming, without conceding that Hoppe was the procuring cause in the Husky-Shell land transaction, he had no right to' act in that capacity. In Zeligson v. Hartman-Blair, Inc., 135 F.2d 874, 875 (10th Cir. 1943), that court said: “It is a well settled principle of law, which needs no citation of authority to support it, that where an owner, in response to an inquiry from a broker, merely states the terms upon which he is willing to sell his property, he does not become liable for a commission if the broker produces a purchaser. Under such circumstances, the broker is a mere volunteer and the owner owes him no duty whatsoever.” Cf. Ira Garson Realty Co. v. Brown, 4 Cal.Rptr. 734 (Cal.App. 1960); Bennett v. H. K. Porter Company, Inc., 301 N.E.2d 155 (Ill.App. 1973). O’Donnell v. Carr, 126 *583S.E. 112, 114 (N.C. 1925). See also 12 C.J.S. Brokers, Sec. 60, p. 134.
A real estate broker seeking a commission has the burden to sustain the action by clear and convincing evidence. I can find no evidence in this record to support an employment contract and I would reverse and instruct the district court to enter a judgment in favor of Shell and against Hoppe. See Johns v. Ambrose-Williams & Co., 317 P.2d 897 (Colo. 1957).