(concurring).
Appellants’ second point is that appellee’s written exclusive contract, which authorized him as agent to sell the property within 45 days, had expired before the sale was made to Sellmeyer; hence the said contract afforded no basis for recovery of a real estate commission by appellee, though appel-lee may have started negotiations with Sell-meyer prior to the expiration date.
There are conflicting decisions in the various jurisdictions on the law question raised by appellants’ second point. They are listed and annotated in 26 A.L.R. 784-800 and 27 A.L.R.2d 1361-1373. The question is also discussed in' 8 Am.Jur. 1086. In some jurisdictions, though not in all, the decision will be determined by the particular wording of the listing contract. For example if the contract merely obligates the real estate agent to “find a purchaser,” and he does so before the expiration of the contract, he is entitled to his commission, though the sale itself is not consummated until after the expiration date. But if the contract by its terms binds the agent “to sell” the property, the agreement to buy and sell must be reached before the expiration of the listing contract, otherwise the agent is not entitled to a commission though he may have begun negotiations with the eventual purchaser before the expiration. In other instances it has been held that when there is a continuity in the negotiations begun before the expiration date, with no break or delay, which negotiations lead to a sale soon after the expiration date, the agent is entitled to a commission
The majority rule in the absence of fraud by the owner apparently is this: When by the terms of the contract the agent’s right to sell is limited to a certain time, he is not entitled to commissions if no sale is effected within that time, though the owner after the expiration date sells to a person with whom the agent had been negotiating. The Texas rule seems to follow the majority holding. Garonzik v. Green, Tex.Civ.App., 275 S.W. 184; Fulton Iron Works Co. v. Wolfe, Tex.Civ.App., 3 S.W.2d 118; Daltex Cattle Co. v. Hill, Tex.Civ.App., 43 S.W.2d 605 (dism.). In my opinion because of the wording of the contract in the instant case we properly sustained appellants’ second point.
Appellants’ third point is that the verbal agreement, though made during the 45-day period of the written listing, was insufficient to meet the requirements of art. 6573a, § 22, V.A.C.S.
It has been held that an oral extension of a written contract, when made prior to the expiration of the written contract, is not violative of the Statute of Frauds. Bullis v. Noyes, 75 Tex. 540, 12 S.W. 397; Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 164 S.W.2d 488. But the rule is not applicable if the oral extension has the effect of changing any of the material terms of the original contract; for then the oral agreement is not merely an extension of the original contract — it'is itself a new and different contract’ and is unenforceable if it comes within the 'class of contracts required by the statute to be in writing. Bullis v. Noyes, supra; Gilbert v. Texas Co., Tex.Civ.App., 218 S.W.2d 906 at pages 943-944; Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624.
In my opinion the oral agreement in this case, as shown by the testimony of appel-lee Underwood himself, did make material changes in the listing contract. It was a new and different contract in the following particulars: (1) It was not an exclusive contract; (2) it was for an indefinite period of time; and (3) it bound the agent only to “secure a purchaser,” whereas the written agreement bound the agent “to sell”. Since it was a new contract it came within *326the terms of the statute, and will not furnish a basis for recovery of judgment by appellee.
It is true that Underwood also testified that after the sale to Sellmeyer, Mrs. Parks told him she would discuss the matter with Mr. Parks, and if Underwood had anything to do with procuring “this client,” Underwood would receive his five percent commission. However this conversation took place after the expiration of the written contract, so even under the rule for which appellee contends, it could not have operated as a valid oral renewal and extension of the written agreement.
There are authorities which hold that in cases of fraud, Matthewson v. Fluhman, Tex.Com.App., 41 S.W.2d 204, estoppel, Dickson v. Kelley, Tex.Civ.App., 193 S.W.2d 256, or waiver, 27 A.L.R.2d 1355; 140 A.L.R. 1019, a broker may recover his commission on a sale made after the termination of his written listing contract. I do not disagree with the holdings in those cases. But under the circumstances present in this case I am of the opinion that such holdings are not applicable. A review of the record fails to disclose any bad faith on the part of the appellants Homer Parks and his wife Mrs. Hallie Parks, or any conduct on their part that would support such pleas, or would result in a wrong to appellee as the court had in mind in Minchen v. Vernor’s Ginger Ale Co., Tex.Civ.App., 198 S.W.2d 613.
This appeal has presented questions which I think are close, and which have been difficult to decide. But after a further consideration of the record I have concluded that I should concur, and I do concur in reversing and rendering the judgment of the trial court as to appellee Billy Underwood and affirming the judgment as to ap-pellee Sellmeyer.