I concur in a reversal of this case but do not agree with the proposed or ordered disposition upon remand.
I construe the contract to be one authorizing plaintiff as agent, for a fixed period of time, to sell defendants' property for a fixed price, and agreeing to pay a fixed commission in event of sale to a third person or to plaintiff himself. We are not concerned with the "option to purchase" as such, as no claim is made for damages for its breach. The trial court probably correctly held it unsupported by a consideration.
It is however a part of the agency contract. Plaintiff could earn his commission by procuring a purchaser within the allotted time, whether that purchaser was himself or another.
It seems clear to me that if plaintiff could have shown that when the agency was wrongfully canceled he had a purchaser ready and able to buy, the measure of his damage for the breach would be the commission he would have earned had he been permitted to complete the sale.
In 12 C.J.S., Brokers, section 17, pages 52, 53, it is said:
"A broker, however, is entitled to damages for the wrongful revocation of his agency * * * provided he shows that he *Page 783 could have made a sale or produced a suitable purchaser * * * within the time limited by the contract."
See, also, 8 Am. Jur., Brokers, section 40, note 18 and cases cited; Cloe v. Rogers, 31 Okla. 255, 121 P. 201, 38 L.R.A., N.S., 366 and note.
This agency contract expressly authorized plaintiff to become the purchaser if he so desired and expressly provided:
"In case of sale or purchase we agree to pay you a commission of $2.50 per acre of the total sale or purchase price." (Italics supplied.)
There was therefore a potential purchaser at all times, including the time of breach by defendants. Before the expiration date of the agency contract plaintiff tendered himself as a buyer within the strict terms of the contract. I think he thereby became entitled to the full amount of his commission as damage for the breach.
I would reverse and remand with direction that judgment be entered accordingly.
MANTZ, J., joins in this special concurrence.