#### H. P. HANSON, Respondent, v. L. M. SUMMERVILLE, Appellant.

(171 N. W. 608.)

Contracts, sale oí land — services of agent — reasonable value.

In an action brought for the recovery of the reasonable value of services *483rendered in securing renters for lands owned by tbe defendant the evidence is examined and *held*to be sufficient to establish such reasonable value.

Opinion filed January 31, 1919.

Appeal from judgment and order of tbe. District Court of Ward County, *Leighton,*J.

Affirmed.

*Greenleaf, Wooledge, & Lesk,*for appellant.

Tbe purchasers furnished must be ready, willing and able to buy at tbe price specified. Ball v. Dolan, 101 N. W. 722; Anderson & Jorgenson v. Johnson, 16 N. D. 176; Zeimer v. Antisell (Cal.) 17 Pac. 642.

The purchaser must be produced within the time limited in his contract. Zeimer v. Antisell (Cal.) 17 Pac. 642; Anderson & Jorgenson v. Johnson, 16 N. D. 176.

The broker cannot recover unless he performs his agreement, regardless of how much work and labor he may have performed. Sib-bald v. Bethlehem Iron Co. 83 N. Y. 378, 38 Am. Rep. 445; Trickey v. Crowe (Ariz.) 71 Pac. 967; Garcelon v. Tibbetts, 84 Me. 148; Yiaux v. Old South Soc. 133 Mass. 110; Loud v. Hall, 106 Mass. 404, 407; Kurtz v. Payne Inv. Co. 135 N. W. 1075.

*Palda & Aalcer,*for respondent.

The appellate court will not overrule the verdict of a jury on a question of fact supported by proper evidence. Ward & Murray v. McFuller, 13 N. D. 153; 19 Cyc. 246, 265.

Refusal of the owner to finish the sale upon the terms agreed will not defeat the agent’s right to commissions. Ibid.

Birdzell, J.

This is an appeal from an order entered in the district court of Ward county, denying the defendant’s motion for a judgment notwithstanding the verdict, or, in the alternative, for a new trial; and from a judgment in favor of the plaintiff which was rendered upon a verdict of the jury in the sum of $640 and costs.

The action is one for the recovery of the reasonable value of services rendered by the plaintiff to defendant in securing renters for certain lands owned by the defendant. The complaint alleges an *484rangement whereby tbe defendant bad employed tbe plaintiff to procure buyers for bis lands at an agreed commission of $4 per acre, if tbe plaintiff paid bis own expenses, or $2 per acre if tbe plaintiff’s expenses were paid by tbe defendant. It is further alleged that, pursuant to tbis agreement, tbe plaintiff procured certain prospective buyers and brought them to tbe vicinity of Eenmare, where tbe lands were situated, and that tbe defendant, instead of completing negotiations for tbe sale of tbe lands to tbe buyers so procured, induced them to rent tbe lands from him for a period of three years, and that at the time tbe rental negotiations were pending tbe defendant assured tbe plaintiff that be would lose nothing by tbe change. Tbe defendant alleges that the reasonable value of tbe services rendered by tbe plaintiff in obtaining tbe renters for tbe defendant'was $50, and that tbis sum bad already been paid.

The appellant advances six propositions in support of bis contention that tbe judgment is erroneous. They are: (1) That the only agreement between plaintiff and defendant was that tbe plaintiff was to procure buyers for defendant’s lands. (2) 'That tbe testimony of tbe prospective purchasers shows that they were not ready, willing, and able to buy, and that no sales were consummated. (3) That plaintiff’s testimony establishes a failure to procure purchasers. (4) That there is a failure of proof of tbe allegation that tbe purchasers furnished were ready, willing, and able to buy according to the list price. (5) That there is no evidence of an agreement between plaintiff and defendant for tbe payment of compensation in case of failure to procure purchasers. (6) That there is no evidence upon which tbe jury could find tbe reasonable value of tbe plaintiff’s services. The first five of these propositions are entirely out of tbe case, as we view it, for tbe reason that tbe action is not predicated upon tbe performance by tbe plaintiff of tbe listing agreement. Tbe listing agreement is only referred to in tbe complaint by way of inducement to tbe allegations covering tbe obligation to pay to tbe plaintiff tbe reasonable value of bis services in procuring renters. Tbe gravamen of tbe complaint is for *quantum*meruit, and not for an agreed compensation. The allegations preceding tbe alleged breach of tbe agreement to pay a reasonable compensation also bear a direct relation to tbe reasonable value, in that it is alleged that tbe defendant agreed that tbe *485plaintiff would lose nothing by the change in the negotiations from a sale to a rental proposition.

This brings ns to the sixth contention, which is that there is no evidence to prove the reasonable value of the services. There is evidence that the defendant told the plaintiff to keep his hands off, and that the defendant would make his own deal with the prospective purchasers. There is also testimony by one of the prospective purchasers to the effect that when the rental proposition was under consideration he asked the defendant, “What will Hanson [the plaintiff] get out of this deal?” and the defendant replied, “I will see that Iianson does not lose anything.” This testimony is corroborated by the plaintiff. In our opinion, this evidence, when considered in the light of the express contract, governing the amount of commissions in case of sale, affords sufficient basis for the verdict. Evidence going to show the value which the defendant himself placed upon the services rendered at his request constitutes an admission by him and is of an unusually satisfactory character in an action based upon *quantum meruit.*

Eor the foregoing reasons, the order and judgment appealed from are affirmed.