Page:North Dakota Reports (vol. 48).pdf/117

 and the lower rate of interest on the deferred payments stipulated for in the sale contract, and that the only change affecting the commission was a agreement to defer its payment until November; whereas, it has been the contention of the defendant, on the other hand, that the plaintiff agreed on June 28th, at the time the sale contract was signed, that he, the plaintiff, would make up the difference between the value to the defendant of the sale contract actually negotiated and the value of one in strict accordance with the listing agreement.

At this point it is convenient to state the grounds of reversal upon the previous appeals. Upon the first appeal the plaintiff and respondent confessed error. The action having been brought upon an express contract for $1,200, and the verdict and judgment being for less than that, it was the respondent’s contention that the recovery should have been either for the whole amount or for nothing. Upon the second trial the plaintiff recovered $1,200, but the court, in its instructions, gave controlling effect to the memorandum of June 28th, Exhibit A above quoted, as against the remainder of the contract of the parties. In view of the testimony relating to the transaction taking place when the sale contract was signed, this was held to be prejudicial. In the third appeal it appeared to the majority of this court that the trial court had again effectually removed from the consideration of the jury the defendant’s version of the transaction of June 28th in connection with the signing of the sale contract.

Upon this appeal the defendant challenges the findings of fact of the trial court, and contends that it appears as a matter of law upon the previous records that the plaintiff has no cause of action upon the express contract sued upon, but at most has an action for the quantum meruit. It is pointed out that the plaintiff’s own evidence shows that the sale contract with Huey involved a departure from the listing contract in the particulars hereinbefore stated, and from this it is argued that the plaintiff is not legally entitled to recover as upon a performance of the express contract. Upon the last previous appeal the substance of this contention was urged as a ground for directing the dismissal of the action. While this court reversed the judgment, it refused to direct a dismissal, saying (Paulson v. Reeds, 39 N. D. 329-341, 167 N. W. 371, 374):

“We do not agree with appellant’s counsel wherein he contends that, under the complaint, which alleged an express contract entered into on the 28th day of June, 1910, there can be no recovery under the evidence in this case. There was ample evidence from which the jury could have