On petition for rehearing. The plaintiff in a petition for rehearing bases it on the following contentions.
1st. The Court’s misapprehension or mistake as to the facts.
2nd. A material mistake or error of law in the decision.
3rd. The Court’s overlooking material admissions in the evidence.
4th. The Court’s overlooking the question of the estoppel by judgment in the prior case.
5th. The Court’s overlooking the question of the judgment being now res judicata.
Those contentions question the correctness of the construction, operation and effect in the main opinion, of the judgment rendered by Judge Thom in the prior action. The parts of the judgment involved are:
*612“ORDERED, ADJUDGED AND DECREED:
I.
That the plaintiff is the owner in fee simple of the following described premises situated .in Eddy County, North Dakota, to-wit: Section Twenty-nine in Township One Hundred Forty-eight North of Range Sixty-seven West of the Fifth Principal Meridian.
IY.
That the defendant Walter Krueger has an enforcible agreement for the purchase of said land upon the following terms and conditions:
Walter Krueger agreed to pay for such land the sum of $19,200.00, paying $4600.00 cash, $2150.00 for improvements and seeding made by plaintiff: To pay $5000.00 on January 1, 1948, and to pay the balance of such purchase price at the rate of $1000.00 per annum, beginning January 1, 1949, with interest on deferred payments due on January 1st of each year, and that' Krueger shall have the privilege of paying off the balance of purchase price in either two or three years at his option; and
That said defendant is entitled to have the said agreement specifically performed, namely that plaintiff. Klindworth execute a formal contract for the sale of. said land to said Krueger, conditioned as follows: that up the payment of the further sum of $5000.00 by Walter Krueger that the balance is payable at the rate of.$1000.00 per year, with interest at 5% per annum from January 1, 1948, with the specific provision that the defendant Krueger may, at his option, pay the balance in full in two years o.r three years; that upon payment of balance due by said Krueger that plaintiff be required to execute a conveyance of said land ' to said Krueger, conveying good and sufficient title to the same.”
Such judgment and the Findings.of Fact and Conclusions of Law on which it was based are in evidence.
. “The party setting .up the former judgment as an estoppel must assume the burden of proving that the particular point *613or question as to which he claims the estoppel was in issue and determined in the former suit.” 50 CJS page 410, Sec 843.
“If there is any. uncertainty in the record as to the matters litigated, as, for example, if it appears that several distinct matters may have been litigated, on one or more of which the judgment was rendered, it is generally held that the whole subject matter of the action will be at large and open to a new contention, unless the party asserting the estoppel removes the uncertainty by extrinsic evidence showing the precise point involved and determined.” 50 CJS Page 411, Sec 843.
“The Findings of Fact do not constitute an adjudication. It is the judgment itself which determines the effect and scope of adjudication.” Stevens v. Minneapolis Fire Department Relief Assn., 219 Minn 276, 17 NW2d 642, 646. “The estoppel resides in the judgment and not in the explanatory reasons for rendering it.” The Citizens’ Bank of Emporia v. Brigham et al, 61 Kan 727, 60 Pac 754, 755.
“It is a well-established rule that it is only the decretal portion of a decree that is binding and becomes res adjudicata. The recital of facts in a decree is usual and is proper, but the rights of the parties are adjudicated, not by the recital of facts, but solely by the decretal portion of the decree. It is this and this only that becomes the final judgment of the court, from which.an appeal will lie. Judge v. Powers, 156 Iowa 251, 136 NW 315, Ann Cas 1915B, 280; Chicago & N. W. R. Co. v. Sioux City Co., 176 Iowa 659, 158 NW 769; Christie v. Iowa Life Ins. Co., 111 Iowa 177, 82 NW 499.” Higley v. Kinsman, Iowa, 216 NW 673, 676.
“The legal operation and effect of a judgment must be ascertained by a construction and interpr'etation of its terms, and this presents a question of law for the court. If the language used in a judgment is ambiguous there is room for construction, but if the language employed is plain and unambiguous there is no room for construction or interpretation, and the effect thereof must be declared in the light of- the literal meaning of the language used.’? 49 CJS pages 862 and 863, Sec 436; Hofer v. Hofer, 35 Ohio L Abs 486, 42 NE2d 165, 166. The judgment “Should be so construed as to give affect to each and every part *614of it, and bring all the different parts into harmony as far as this can be done by fair and reasonable interpretation.” Lamb v. Major & Loomis Co., 146 NC 531, 60 SE 425; 15 Standard Enc. Procedure, p 92; 30 Am Jur p 835, Sec 31; 49 CJS pages 863 and 864, Sec 436; McHenry v. Smith, 154 Kan 528, 119 Pac2d 493, 495; Ayers v. Smith, Ind App, 84 NE2d 185, 190; State v. District Court, 72 Mont 374, 233 Pac 957, 958; Whaley v. Matthews, 136 Nebr 767, 287 NW 205, 210; Gade v. Loffler, 171 Okla 313, 42 Pac2d 815, 818. “A judgment, plain and unambiguous in its terms, may not be modified, enlarged, restricted, or diminished by reference to the” Findings of Fact. 49 CJS Page 868, Sec 436.
As related in the main opinion, Klindworth and Krueger did not regard their verbal transaction of October 2, 1947 as constituting more than the basis for a contract of sale they then intended to reduce to, and execute, in writing at a later time. All the acts of Klindworth thereafter were consistent therewith, as were the acts of Krueger thereafter up to the commencement of the prior action. So too were those of the plaintiff up to November 2, 1947, and apparently thereafter until the commencement of this action.
Had the October 2nd transaction been a valid contract, it would have in and of its own force worked a revocation of the listing contract. “The transfer or sale of the subject-mátter of a mere agency or a power of attorney not coupled with an interest revokes the authority of the agent.” 2 Am Jur P 50, Section 57.
The listing contract was revocable. “It is clear that an agency in the execution of which'the agent has no other interest than that which springs from his right to earn his compensation or commission is not coupled with an interest so as to be irrevocable.” 2 Am Jur P 67, Section 84.
On October 8th, 1947, the plaintiff caused the listing contract to be recorded in the office of the Register of Deeds of Eddy County. On November 1, 1947, it- notified the defendant that the listing contract was still in force. On November 8th, 1947, Krueger informed the plaintiff that he did not know whether his land deal with' the defendant was going to go through and *615that it might proceed to sell the land. On November 12th, 1947, the plaintiff, as agent of the defendant, executed a contract for the sale of the land to Nelson and Moberg. It then caused notice of that sale to be recorded in the office of the Register of Deeds. On December 2nd,- 1947, the plaintiff, in writing, notified the defendant of said sale and requested him to execute a deed for delivery to the purchasers. The same counsel represented the plaintiff corporation and said purchasers in the trial of the prior action. Hence, because of the conflicting interest therein, between Krueger and said purchasers, the inference is unavoidable that the plaintiff corporation was not antagonizing the demands of Nelson and Moberg at such trial.
Thus the plaintiff, by its acts, placed its own construction on the validity, operation and effect of the October 2nd, 1947 transaction. Such record establishes that, during all of the times above stated, the plaintiff was by its acts contending that the listing contract was still in force, a contention necessarily tantamount to a declaration by the plaintiff that the October 2nd transaction was not a valid contract of sale.
The question arises as to what was the ground in the Finding of Fact on which the above quoted. fourth paragraph of the Judgment was based. In such Findings, two such grounds appear. The first is that wherein Judge Thom found the verbal terms on which Klindworth was willing to sell, and Krueger to buy, the land, and found in connection therewith, that at the time of their verbal transaction in October, 1947, Klindworth was in the act of seeding rye and preparing the land for the 1948 farming season, that Krueger paid Klindworth $4600.00 on the $19,200.00 purchase price, that, in addition to the purchase price, Krueger agreed to, and did, pay Klindworth $2130.00 for such farm work and its completion, and that Krueger by his isolated act of paying such $2130.00 for said work, acquired possession of the land and placed valuable improvements thereon. The phrasing of the italicized clause in such Findings and the construction of its different parts with one' another make the clause plain and specific. The clause definitely limits and circumscribes the manner in which it asserts that Krueger ac*616quired the alleged possession. Said manner is emphasized by its repetition in the Findings. Such limitation and circumscription leave no basis for any inference that there was any evidence at the trial of the prior action as to Krueger having acquired actual possession of the land. “. . . possession sufficient to constitute part performance is an actual possession as distinguished from a mere symbolic, fictitious, or constructive change of possession;” 49 Am Jur p 751, Section 443. For the reasons fully detailed in the main opinion, the alleged acquisition of possession and valuable improvements, either singly or together, are insufficient as a factor of any force in determining whether the acts of part performance were sufficient to take the October 2nd, 1947 transaction out of the statute of frauds. A judgment based on the first ground would have been erroneous.
But there is a second ground. That is the one wherein Judge Thom found the terms of the verbal transaction, as above set out, and further found:
“That Plaintiff Otto Klindworth, and Defendant Walter Krueger, are willing to perform such verbal contract if permitted or ordered so to do by the Court,' both parties waiving-any legal objections to enforcement of such contract.”
The waiver and consent, clause, too, is emphasized by the repetition of its substance in the Findings. The waiver and consent thus given, the terms being determined, constitute a valid and sufficient ground to sustain the judgment. 49 CJS page 308, Section 174.
“Where a general judgment may have been based upon two or more grounds, one of which would be erroneous, and the others proper, it is presumed the judgment was based upon the proper grounds.” Western Paving Co. v. Board of Com’rs, 183 Okla 281, 81 Pac2d 652, 656.
Paragraph four of the judgment lends support to the view that there was no valid contract of &ale between the parties in existence during the life of the listing contract, and the view that the paragraph is based on the waiver and consent of the parties. It is not in harmony with any.other view. The paragraph decreed, first, that Klindworth execute a formal contract for sale of the land to Krueger, and, second, that, on Krueger’s *617compliance with, its terms, Klindworth execute a conveyance of .the land to him. If there was a prior valid contract of sale present, why was there not a direct decree of its performance rather than the decree of the fruitless act of its execution in writing as a condition precedent to its performance? The only reasonable and logical answer lies in the absence of a valid contract on the one hand and the presence of the waiver and consent of the parties on the other hand.
The judgment furnishes further convincing evidence that there was no prior valid contract of sale and that it was based on such waiver and consent. Had there been such a contract before the trial of the prior action, the equitable estate in the land would have, by operation of that contract, been vested in Krueger. But the judgment effectively and conclusively negatives any such status of the title by its recognizing and decreeing the whole title, both legal and equitable, to be in Kliiidworth.
The conduct of the parties in relation to the October 2nd transaction merits consideration in respect to what their interpretaof the effect of such verbal transaction was.
As related in the main opinion, Klindworth and Krueger did not regard such verbal transaction as constituting more than the basis for a contract of sale they then intended to reduce to, and execute, in writing at a later time. All the acts of Klindworth thereafter were consistent therewith, as were the acts of Krueger up to the commencement of the prior action. So, too, were those of the plaintiff up to December 2, 1947, and apparently thereafter until the Judge Thom decision in the prior action.
Had the October 2nd transaction amounted to -a valid contract, it would have in and of its own force worked a revocation of the listing contract. “The transfer or sale of the subject-matter of a mere agency or a power of attorney not coupled with an interest revokes the authority of the agent.” 2 Am Jur p 50, Section 57.
The listing contract was revocable. “It is clear that an agency in the execution of which the agent has no other interest than that which springs from the right to earn his compensation or *618commission is not coupled with an interest so as to be irrevocable.” 2 Am Jur p 67, Section 84.
On October 8th, 1947, the plaintiff, after it had been notified of the negotiations between Klindworth and Krueger, caused the listing contract to be recorded in the office of the Register of Deeds of Eddy County. On November 1, 1947, it notified the defendant that the listing contract was- still in force. On November 8th, 1947, Krueger informed the plaintiff that he did not know whether his-land deal with the defendant was going to go through and that the- plaintiff might proceed to sell the land. On November 12th, 1947, the plaintiff, as agent of the defendant, executed a contract for the sale of the land to Nelson and Moberg. It then caused notice of that sale to be recorded in the office of the Register of Deeds. On December 2nd, 1947, the -plaintiff, in writing, notified the defendant of such sale and requested him to execute a deed for delivery to the purchasers. The same counsel represented the plaintiff corporation and said purchasers in the trial of the prior action. Hence, because of the conflicting interests therein between Krueger and said purchasers, it is apparent that the plaintiff corporation was espousing the cause of Nelson and Moberg at such trial.
Thus, the plaintiff, by its acts, placed its own construction on the validity of the October 2nd,-1947 transaction. Such record establishes that, at all times during the life of the listing-contract, the plaintiff was by such acts contending that' the listing contract was still in force, a contention necessarily tantamount to a declaration by the plaintiff that the October 2nd transaction was not a valid contract- of sale.
In his decision as to the rights of the parties, Judge Thom was concerned alone with the status and rights of the parties as they had been shown to him upon the-trial and as they were at the time he rendered judgment. “In equitable actions the right to a judgment is not limited to the facts as they existed at the commencement of the action, but the relief administered is such as the nature of the case and the facts, as they exist at the close of the litigation, demand.” Sherman v. Foster, 158 NY 587, 593, 53 NE 504, 506; Peck v. Goodberlett, 109 NY 180, *619189, 16 NE 350, 353; Haffey v. Lynch, 143 NY 241, 248, 38 NE 298, 299; Pond v. Harwood, 139 NY 111, 120, 34 NE 768, 770; Baker v. Salzenstein, 314 Ill 226, 145 NE 355, 358; Superior Oil & Gas Co. v. Mehlin, 25 Okla 809, 108 Pac 545, 549.
In other words, in his determination as to the transaction between Klindworth and Krueger, Judge Thom was concerned only with ' determining whatever controversy existed between them, as shown to him upon the trial, not as of the date of the commencement of the action, nor as of any other prior date, but as of the date of the determination thereof, including whatever admissions or waivers were made by the parties upon the trial.
The foregoing construction of the operation and effect of the Judge Thom Judgment gives literal meaning to its every part and brings its different parts into complete harmony. To construe it otherwise would necessitate, in order to preserve harmony in it, the engrafting of substantive provisions upon it. That, the Court is not permitted to do.
Rehearing denied.
Nuessle, C. J., and Burke, Morris and Christianson, JJ., concur.