dissenting: I fully concur in the dissenting opinion of Justice Fatzer but wish to make a few additional observations. In my opinion the two questions raised on this appeal require negative answers. First, there is no evidence presented by the record to indicate that the property in question was sold during the three-months’ period during which it was listed exclusively with the plaintiff, the trial court’s finding to the contrary notwithstanding. Second, there is no evidence to support the trial court’s finding that there was a bona fide offer from a ready, able and willing purchaser to purchase the property upon a price and terms agreeable to both the seller and buyer during the three-months’ period.
The substance of the evidence boils down to the fact that while the plaintiff’s listing was in force, Velma Roberton would not make an offer of a sufficient amount acceptable to the defendants; the defendants would not accept an amount she was willing to pay and still pay a commission. The parties could not get together, and the defendants directed Velma Roberton to the agent who had an exclusive listing, but she refused to deal with an agent and did nothing.
In deciding to wait for a possible lower price after the plaintiff’s *271listing expired, Mrs. Roberton took the risk that in the meantime some other person would purchase the property from the defendants through the broker. Actually, the Hopewells were trying to purchase the property upon terms agreeable to the defendants, but could not raise the money, and this deal was pending until the expiration of the three months during which the plaintiff had the exclusive listing of this property. The defendants took the risk that in the meantime Mrs. Roberton would purchase some other piece of property. If the parties chose to follow this course of action, they had a right to do so. The plaintiff was protected in that if anyone made an acceptable offer within the period of his exclusive listing, he was entitled to a commission. This was the purpose of a time limit on the listing. If the realtor could not effect a sale within the specified time, or in accordance with the terms of the contract, the owners were free to deal as they pleased after the listing had expired.
It must be observed this is an action upon a special contract. The ordinary rule applicable to a real estate agent’s commission set forth in the court’s opinion does not apply where the agent’s commission is governed by a special contract. The agent can recover only if he brings himself within the terms of the specific contract under which, and only under which, the defendants were to be obligated. (Morgan v. Wheeler, 153 Kan. 695, 701, 113 P. 2d 165; and Karr v. Moffett, 105 Kan. 692, 185 Pac. 890.)
The defendants gave the plaintiff only a three-months’ listing. Time was of the essence of this contract, the defendants having refused the plaintiff’s request for a longer listing. Under such conditions, the defendants were not liable to pay the plaintiff any commission where he could not get the property sold during the time of the listing. (Fultz v. Wimer, 34 Kan. 576, 9 Pac. 316.)
There was no delay in making the sale caused by any negligence, fault or fraud of the defendants. The plaintiff admits that all during the time the contract was in force the defendants wanted to sell the property and would have sold it for the price of the contract, if the plaintiff could have found a buyer. The plaintiff’s witness and prospective purchaser, Mr. Hopewell, likewise admitted that the defendants were going to sell him the property if he could have raised the money. The defendants referred Mrs. Roberton to the plaintiff, but she would not go to see him.
The defendants’ contract of sale with Mrs. Roberton was not *272only consummated after die plaintiff’s time had expired pursuant to the terms of the specific listing, but was consummated on terms different from those specified in the specific listing, and the property was not sold to a person whose name was listed by the plaintiff as one with whom he had negotiations while the contract was in force. The plaintiff’s contract for a commission was specific, and the service to be rendered in order to earn the commission was specific. The plaintiff did not succeed as he admits in his letter to the defendants. Hence, he is not entitled to a commission. (Karr v. Moffett, supra.)
It is respectfully submitted the judgment of the lower court should be reversed.