(dissenting). I am unable to agree with the majority opinion.
Plaintiff was a commission salesman under defendant broker and his right to a commission was controlled by his written employment contract with defendant. The portions of the contract material to present decision read:
“That all exclusive listings are the property of the broker, * * * .
“To pay the salesman a commission in accordance with the rate schedule below, immediately after consummation of any sale as soon as such commission has been collected by the broker.
“Suits for commission shall, agreeable to the law, be maintained only in the name of the broker, and salesman shall be construed to be a sub-agent only with respect to the clients and customers for whom service shall be performed, and shall otherwise be deemed to be an independent contractor and not a servant, employee, joint venturer or partner of the broker.”
During the term of the listing 'contract, plaintiff came upon some people by the name of Elliott who were looking at a house defendant had listed. Plaintiff introduced himself, learned the house Elliotts were then viewing was not suitable, and inquired what type of home they were interested in. After hearing the Elliotts’ description of the type of home they wanted, plaintiff told them of the Wilson property. Elliotts asked to see it and plaintiff attempted to show them the Wilson property. It was not then available for showing and the Elliotts could not wait until it was available. Elliotts said they would make an appointment with plaintiff to see the Wilson property later that week. When the Elliotts failed to make this appointment, plaintiff learned they *497were dealing directly with the Wilsons. Wilsons concluded a sale to Elliotts directly.
After investigation, defendant released Wilsons from the listing agreement and defendant received no commission on the transaction.
Plaintiff’s written contract of employment required defendant to pay him a commission, “immediately after consummation of any sale as soon as such commission has been collected by the broker”. The same contract gives defendant control of commissions and this indicates the true meaning of the phrase, “as soon as such commission has been collected by the broker”. It is, if the broker collects, the salesman is paid.
Such a provision is valid and binding, O’Connor v. March Automatic Irrigation Co. (1928), 242 Mich 204. This does not permit the broker to defeat the salesman’s claim for commission by arbitrary action without just cause or for the convenience of the broker, O’Connor, supra. Here, however, the record indicates the broker investigated, determined the listing should be released and released it without seeking a commission. This bars plaintiff from recovery.
I would reverse and remand for entry of judgment for defendant with costs to it.