Page:North Dakota Reports (vol. 48).pdf/119

 opinion that the defendant became liable for the full commission if he in fact continued to recognize the plaintiff as his agent and signed the contract with Huey, knowing at the time that the listing contract had been in some respects departed from; provided that by his words or actions he manifested the intention to become bound for the full amount. See Red River Valley Land Co. v. Hutchinson, 41 N. D. 193, 170 N. W. 317; S. E. Crowley Co. v. Myers, 69 N. J. Law, 245, 55 Atl. 305. Whether or not he did so manifest the intention to become bound for the full commission presents a question of fact. The evidence does not warrant overturning the decision of this question by the trial court in favor of the plaintiff.

The judgment appealed from is affirmed.

, J., concurs.

, J., concurs in result.

, J. (specially concurring). This is the fourth appeal in an action © by plaintiff to recover commissions claimed to have been earned in con- summating a sale of 800 acres of land. See Paulson v. Reeds, 24 N. D. 211, 139 N. W. 1135, 33 N. D. 141, 156 N. W. 1031, and 39 N. D. 329, 167 N. W. 371.

The case has been four times before the trial court, and, with the exception of the first trial, where plaintiff recovered a $700 judgment, in each of the trials he has recovered the full amount of commissions claimed, to wit, $1,200. When the case was last before this court, prior to this appeal, in 39 N. D. 329, 167 N. W. 371, the writer hereof was unreservedly of the opinion that the judgment there appealed from should be affirmed. All of the other members of the court, however, thought that the judgment should be reversed, and it was reversed, the writer hereof at length and very vigorously dissenting, as will appear from a reading of my dissent.

The case is now again presented to this court, on this fourth appeal, by an appeal from a judgment in plaintiff’s favor for $1,200. The majority of the members of this court are now agreed that the judgment should be affirmed, a conclusion which harmonizes with the result arrived at by