(dissenting).
Believing that the trial judge was right in directing a verdict, I respectfully dissent from the foregoing opinion.
The ruling below was made on the basis of the entire record, all essential facts were stipulated, and it clearly appeared that there was no factual issue to be decided and no legal theory on which plaintiff broker could *632be permitted to recover. Hence defendants were entitled to have the case decided as a matter of law.
This case does not fall within the general rule that a broker earns a commission when he procures a purchaser ready, able and willing to buy on the seller’s terms and the failure to consummate the sale is due to fault or misconduct of the seller. The record suggests no fault or misconduct on the part of these sellers.
I think this case is governed by Dixon v. Bernstein, 86 U.S.App.D.C. 336, 182 F.2d 104 (1950). There the contract provided that the obligation to the broker would arise only on consummation of sale. Affirming a summary judgment against the broker the court held that since no sale took place there was no liability for commission,1 and added that good faith of the seller was not an issue in the case. Such was the legal situation in the case before us.
The listing prescribed: “Owners reserve the right to reject any offer until it is accepted in writing.” This was not a meaningless provision. It reserved unto the owners complete freedom of action to accept or reject any offers presented by any of the brokers with whom the property had been listed, and it meant that no liability for commission would arise unless and until an offer had actually been accepted in writing. It prescribed the terms on which the owners were willing to deal, and put appellant and the other brokers on notice that in accepting the listing and attempting to find a purchaser they would be subject to that plainly expressed condition and would have no right to claim commission unless the condition were met.2 This was the heart of the case, and it involved no factual question at all.
One of the broker’s arguments was that the listing was ambiguous, and that he should have been permitted to introduce evidence to explain it. His proffer, however, consisted principally of his own personal version as to his subjective understanding of the provision. Such evidence would not have been admissible, and certainly could not have been permitted to vitiate the express conditions of the agreement. I would affirm.
. To the same effect is Aetna Life Ins. Co. v. Home, 193 Okl. 478, 145 P.2d 189 (1943).
. The words “full commission” are of no significance here. They meant only that the broker would not be required to split his commission with the vendor-trustees.