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 from the order of the court, with reference to any demurrer except that of Allen; and, hence, that is the only one presented here for consideration.

From what has been above said, we are of the opinion, that the trial court was in error in sustaining the demurrer interposed by Allen, and in making its order to that effect. That demurrer should have been overruled, and defendant Allen permitted to answer, and the case thereafter tried on its merits.

We have written quite at length, with reference to the questions involved in this opinion. The case came to the writer in the regular order of assignment, and the foregoing opinion was prepared with the expectation that it would be adopted as the law of the case. Thorough investigation was made into several crucial questions, which heretofore have not been decided by this court, and definite conclusions, with reference thereto, arrived at, which, we believe, constitute the law of the case.

MARTIN PAULSON, Respondent, v. J. A. REEDS, Appellant.

Brokers—whether sale negotiated was in substantial conformity to listing agreement held question of fact.

1. In an action by a broker to recover commissions earned under an express contract for the sale of real property, it appeared that the broker negotiated a contract for the sale which departed somewhat from the listing agreement. The evidence was conflicting as to whether the defendant accepted the contract as a substantial fulfillment of the agency or upon condition that the agent would reduce his commission to make up the difference between the value of a contract conforming to the listing agreement and that actually negotiated. It is held:

Following a prior decision in the same case, a question of fact is presented upon such conflicting evidence.

'Brokers—broker held entitled to commission for sale not strictly conforming to listing agreement.

2. Where an owner signed a contract for the sale of land negotiated by a broker with knowledge that it did not conform to the listing agreement, and without terminating the agency or modifying the agreement