ON REHEARING. It is insisted by plaintiff that the proof of the contract should not be limited to the first letter and reply; that the petition is not so limited but is in the broadest terms, pleading in their legal effect the facts. It is insisted that not only the first letter and reply but all of the communications and acts of the parties should be considered in determining whether there was an express contract. The only other communications had between the parties, the nature of which is shown in the record, were, first, the conversation had over the phone in which plaintiff told defendant that the former had taken Derr to look at the property; that Derr would see defendant the next day at St. Joseph, Missouri, while on his way to Des Moines, Iowa, to interview some parties concerning the purchase of the property, and that defendant had quoted Derr a price of $15,000; and, second, the letter written by defendant to plaintiff some time after Derr first came to Sedalia *Page 160 in which defendant wanted to know what was being done and insisting on plaintiff's hurrying up, that defendant desired to go to Arizona.
Construing all these communications, together with the acts of the parties as recounted in the opinion on the original submission of the case, we think that plaintiff wholly failed to prove the express contract alleged in the petition. That contract was that defendant, in the early fall of 1917, placed the land with plaintiff, a real estate agent, for sale, agreeing to pay as a commission, should plaintiff find a purchaser, all over and above $9000 for which defendant might sell the land. The original communications instead of being an agreement to pay a commission constitute a positive statement by the defendant that he would not pay a commission, and instead of the agreement being to pay a commission it was one, if anything, not to pay a commission. Defendant's original communication appears to be an option, if anything, to plaintiff to buy the land at the net price of $9000. It cannot be construed to mean to be an offer to plaintiff to permit him to sell the land for a commission.
It may be, we do not say, that these subsequent communications and the conduct of the parties were sufficient from which the jury might say that there was an agreement to pay a commission for the sale of the property, but they do not afford any basis for the contention that plaintiff was to receive as his commission all in excess of $9000 that the property might be sold for. If they constitute a contract at all the amount of the commission was omitted, the implication or inference being that that amount would be the usual commission. Likewise a jury might say that the other communications had between the parties are not inconsistent with the idea that the original communications merely amounted to an option. The only way in which a jury could find that the subsequent communications and conduct of the parties show a contract to pay a commission of all in excess of *Page 161 $9000 that the property should be sold for, would be for them to refer back to the original communication of defendant wherein he said that he would take a "net price of $9000 and no commission" for the land. The matter cannot be helped out by referring to this communication for the reason that the language positively refutes the idea that any commission was to be paid much less a commission of all in excess of $9000 the property should bring. Unless we can say that no commission means a commission, we think that plaintiff entirely fails to make out the case pleaded in his petition. The initial letters are not couched in technical trade terms nor do they constitute a contract of doubtful meaning and, therefore, subject to explanation.
It is insisted that in receiving plaintiff's original communication, defendant as a reasonable man must have concluded that plaintiff was a real estate agent seeking to sell the land on a commission, for the reason that plaintiff wrote to defendant that "he (plaintiff) had been successful in handling several properties, and that I knew of some people that were in the market for mining property and to let me know on what terms he wanted to handle it on," and that defendant, having answered the letter in the way he did, offered to let plaintiff sell the property on a commission, the amount of which was to be any sum in excess of $9000 that the land should be sold for. Even had the defendant been apprised of the fact by plaintiff's original communication that plaintiff was a real estate agent, there was nothing unusual or unreasonable in the idea that defendant was willing to sell the property to plaintiff or that if the property was sold to a third party such party should pay a commission. In fact, defendant testified that he did not know when he wrote plaintiff the letter whether he was a real estate agent or not; that in case plaintiff was a real estate agent, defendant wanted to make it clear that he was to get $9000 out of it and that he did not care what plaintiff got out of it. There is nothing in the law nor in *Page 162 reason requiring the owner of real estate to pay a commission when he merely writes a real estate agent quoting a net price on his property and stating that he will pay no commission.
Plaintiff states that the judgment should either be affirmed or reversed outright. Plaintiff failing to prove the cause of action alleged in the petition, the judgment is, therefore, reversed. All concur. *Page 163