#### John S. Moore, Appellant, v. John S. Cresap.

TyAnd sate commissions : *Evidence insufficient to entitle to.*The court is authorized in finding that plaintiff did not consummate a trade of the land of defendant C., with P., where he failed to arrive at any terms of exchange, and ceased to make any efforts after January 8th, his letter of that date indicating that he regarded the negotiations at an end, and P. says he wrote plaintiff in reply to that letter that he could not trade, and to send no more agents, and that at that time he had no thought of any more dealings, and had no arrangement or thought of any arrangement of trading with C. till he came out on January 20th and renewed negotiations, resulting in an exchange.

*Appeal from Van Burén District Court—*Hon. T. N. Pee, Judge.

Monday, October 16, 1899.

Action to recover one thousand two hundred and forty-two dollars and sixty cents commission for selling, or causing to be sold, a .certain farm for the defendant. A jury being waived, the case was tried to the court, and judgment rendered in favor of defendant. Plaintiff *appeals.*

Affirmed.

*Wherry & Walker*for appellant.

■S'. *E. Irish*and- *W. A. Work*for appellee.

Given, J.

I. The defendant executed to the plaintiff a writing .as follows: “Bonaparte, Iowa, Oct. 6, 1897. I hereby agree to pay Mr. John S. Moore, of Keokuk, Iowa, all over and above $30.00 per acre he may sell my farm of 168 acres and a fraction for. This contract to be void if no sale is made within 60 days from this date. J. H. Cresap.” The defendant extended the time beyond the sixty •days, but claims that he did not extend it beyond January 10, 1898; while plaintiff claims that in a letter of December 16, 1897, it was extended “to January 1st, and longer, if we can get on to anything that looks like a trade.” Plaintiff advertised the farm for sale at thirty-seven dollars and fifty cents per acre, and C. A. Pickard, seeing the *750advertisement, opened correspondence with the plaintiff, and went to see the Cresap farm. On December 27th the plaintiff visited Pick-ard, and Pickard offered to exchange a certain sixty acres of land, at fifty dollars per acre, for the Cresap farm at the advertised price. This offer was not accepted, and the plaintiff proposed a plan by which Pickard should borrow money, and keep both tracts of land. An attempt was made to carry out this plan, but it failed. In response to an offer from Pickard, addressed to the defendant, the defendant wrote to Pickard, January 25, 1898, offering to take his land, subject to a mortgage for seven hundred dollars thereon, and his notes for four thousand dollars, with 6 per cent, interest, secured by mortgage on the Cresap farm, for said farm. This offer was accepted by Pickard, and on January 28, 1898, the deeds and a mortgage were executed and delivered accordingly.

II. The original authority to the plaintiff was to sell, but it is insisted that the defendant’s letter of December 16th not only extended the time, but also conferred authority to trade, on terms acceptable to the defendant. In that letter, written with reference to the trade with Pickard, the defendant says: “We will leave the contract open to January 1st, and longer, if we can get onto anything that looks like a trade, and I believe Pickard will buy this place.” Det it be conceded that by this letter the defendant did extend the time, and authorized the plaintiff to consummate a trade, still the question remains whether the plaintiff did consummate the trade that was made. Plaintiff failed to arrive at any terms of exchange with Pickard, and ceased to make any effort in that direction, after January 8th. Indeed, his letter of that date indicates that he regarded the negotiations at an end. Pickard says he wrote him, in reply to that letter, “that he could not trade with us; to send no more land agents out; that he was done with the land agent, and with the Cresap farm. I had no thought at that time of ever having anything to do with him after that.” About January 20th, Cresap called on Pickard, and renewed negotiations that resulted in the exchange of properties, as already stated. Pickard says: “I had no arrangement, or any thought of any arrangement, of trading with Cresap, until he came up, about the 20th.” We will not refer more at length to the evidence. It is sufficient to say that the court was fully -warranted in finding that the plaintiff did not make, nor bring about, the exchange of properties that was made, and that his efforts in that direction had'entirely ceased before the trade was consummated.— Affirmed.