Page:North Dakota Reports (vol. 48).pdf/116

 nesses were again sworn and the same testimony given in open court. After considering the case, the court made findings of fact and conclusions of law favorable to the plaintiff, and ordered judgment accordingly.

The complaint alleges a cause of action upon an express contract. It states that on or about the 28th day of June, 1910, the plaintiff and defendant entered into an agreement whereby the defendant agreed to pay the plaintiff for his services in securing a purchaser for certain lands such amount as might be realized from the sale over and above $16 per acre, and that thereafter, on the same day, the plaintiff procured as a purchaser, one Huey, who was then ready, willing, and able to purchase the lands upon the terms agreed upon by the plaintiff and defendant, and who did so purchase them at the price of $17.50 per acre; whereupon, pursuant to*the agreement, the plaintiff had earned the stipulated compensation of $1,200. It seems that just prior to the signing of the sale contract which the plaintiff had negotiated with Huey the plaintiff induced the defendant to sign a memorandum which has been referred to in the previous records as Exhibit A. The memorandum reads:

“Wyndmere, N. D., June 28, 1910.

“Martin Paulson:—You are hereby authorized to sell my land, west one-half and S. E. quarter, section 21, and east 14 20—133—52, at ($16.00) per acre, net to me.

“J. A. Reeds.”

In the previous appeals the records have contained testimony showing that, at the time the sale contract, referred to at various times as Exhibit B, was signed by the defendant, the question was raised that it did not embody the terms which the defendant had previously agreed to accept, in that the cash payment was smaller and the interest rate less on the deferred payments than he had stipulated for in the listing agreement. The effect of this departure was to make the value of the contract less than “$16 per acre net” to the defendant according to the meaning which that expression was mutually understood to convey at the time it was embodied in Exhibit A. It has been the contention of the plaintiff that, notwithstanding the sale contract, Exhibit B, involved a departure from the listing terms previously agreed upon, the defendant, on June 28, 1910, accepted it as a fulfillment of the agency contract without any reduction in the commission; that the defendant accepted the aggregate consideration. amounting to $17.50 per acre, as not reduced by the smaller cash payment.