
    FRED C. OTTO v. ANDREW H. MELVILLE.
    
    May 4, 1923.
    No. 23,352.
    Broker’s commission not earned.
    In a suit for a broker’s commission it is held that the proposed purchaser and the vendor did not agree upon price or terms and that a commission was not earned.
    Action in the district court for Jackson county to recover $300. The case was tried before Nelson, J., wbo when plaintiff rested denied defendant’s motion to dismiss the action and plaintiff’s motion for a directed verdict, and directed a verdict in favor of defendant. From the judgment entered pursuant to the verdict, plaintiff appealed.
    Affirmed.
    0. Thoreson, for appellant.
    
      E. E. Nicholas, for respondent.
    
      
       Reported in 193 N. W. 467.
    
   Dibell, J.

Action by the plaintiff to recover a broker’s commission. The court directed a verdict for the defendant and the plaintiff appeals from the order denying his alternative motion for judgment notwithstanding or a new trial.

The defendant owned a quarter section of land bordering a lake in Jackson county. It was not a full quarter. The plaintiff had it listed for sale as containing 150 acres more or less and so advertised it. He considered this the acreage.

On May 21, 1919, the defendant at New York wrote the plaintiff urging him to negotiate a sale to one Albertson with whom apparently there had been prior negotiations. Albertson had sold his farm and had taken a purchase money mortgage of $20,000. In this letter the defendant stated that he would take “the mortgage of $20,000 on Albertson’s farm and take back a mortgage for $2,250 on mj farm at 5-|- per cent interest.” On tbe same date be sent a telegram in wbicb be referred to tbe proposed sale for tbe $20,000 mortgage and $2,250 back as on a “one hundred fifty an acre basis.” Upon receipt of tbe letter tbe plaintiff interviewed Albertson and be agreed to take tbe farm except tbat be preferred to pay cash instead of giving a mortgage for $2,250. A telegram was sent to tbe defendant by tbe Jackson State Bank on May 31, as follows:

“Albertson takes farm tbrougb Otto and Bond your terms except tbat be pays cash above twenty thousand mortgage money deposited here awaiting deed and abstract answ'er.”

Bond was an officer of the bank and represented tbe defendant in some matters. Albertson deposited tbe $20,000 mortgage and $2,250 in cash with the bank at tbe time. A telegram was received by Bond from tbe defendant under date of June 2 in wbicb some instructions were given having in view a sale to Albertson, evidently in response to tbe bank’s telegram, but with no specific mention of price or terms. On tbe same date defendant wrote a letter to Bond in part as follows:

“Sent you telegram just now saying sale of Lake farm is O.- K. at $22,500,1 to take mortgage of $20,000 and cash $2,500.”

Tbe correspondence does not show a meeting of minds upon the price. Tbe defendant’s offer by letter to take $22,250 with interest on tbe deferred payment of $2,250 at 5-J- per cent was not accepted by Albertson. Albertson’s counter offer, taking it to be $22,250, tbe balance above tbe $20,000 in cash, was not accepted by tbe defendant. Tbe defendant’s counter offer was at tbe price of $22,500 with $2,500 in cash above tbe $20,000. This was not accepted by Albertson. Some three months later Albertson deposited an additional $250 in tbe Jackson bank; but be says tbat this was after tbe defendant bad written tbat be would not accept bis offer. The defendant’s offer was not then outstanding. Tbe plaintiff considered bis work completed in May.

Tbe minds of Albertson and tbe defendant not having met upon a price or terms it is immaterial whether tbe contract was that tbe plaintiff, to earn bis commission, should produce a purchaser or should effect a sale.

Order affirmed.  