
    ROSS BATES v. D. J. REYNOLDS.
    
    June 17, 1904.
    Nos. 13,945—(153).
    Appeal by defendant from an order of the district court for Hennepin county, Willard R. Cray, J., denying a motion for a new trial, after a trial and verdict in favor of plaintiff for $2,797.06.
    Affirmed on condition.
    
      A. B. Jackson, for appellant.
    
      Chas. B. Bond, for respondent.
    
      
       Reported in 100 N. W. 1123.
    
   PER CURIAM.

One Hood was the owner of seventeen quarter sections of land in North Dakota, which he desired to sell. Defendant wished to purchase six of the quarter sections, but Hood would not sell them unless defendant purchased, the entire body of land. Defendant’s object was to obtain title to six of the quarter sections for the purpose of exchanging them for a stock of men’s furnishing goods in Minneapolis. Being unable to procure the six quarter sections apart from the seventeen, he entered into a contract with .plaintiff by which he employed'the latter to obtain a purchaser for the other eleven quarter sections not wanted by defendant for the purpose of making the exchange. He agreed to pay plaintiff for his services in procuring such a purchaser the sum of one dollar per acre. The evidence tends to show that plaintiff procured a purchaser for the eleven quarters. The land was conveyed to him, and the six quarter sections were conveyed to defendant. Whereupon plaintiff brought this action to recover his commission, claiming that by the contract between himself and defendant he was to receive for his services the sum of $2,720, or one dollar per acre for the entire seventeen quarter sections. At the trial in the court below the jury returned a verdict in his favor for that amount, and from an order denying defendant’s motion for a new trial this appeal was taken.

Several errors are assigned in the rulings of the court on the trial, but we discover nothing to justify granting a new trial. However, a majority of the court are of the opinion that the verdict for plaintiff was larger than the evidence warrants, and that a fair construction of the contract between the parties entitled plaintiff to one dollar per. acre for procuring a purchaser for eleven quarter sections only. He did not procure a purchaser for the six quarter sections to which defendant obtained title, and is clearly not entitled to a commission therefor. While the trial in the court below seems to have proceeded on the theory that plaintiff was entitled to a commission on the sale of the entire body of land, or nothing, and no exceptions were taken to the charge of the court to the jury, the members of this court agreeing to this opinion hold that the ground of the motion for a new trial, and the assignment of error in this court, that the verdict of the jury was not justified by the evidence, is sufficient to present this question for consideration. As it appears, under a fair construction of the contract between defendant and plaintiff, that plaintiff was entitled to such a commission for the eleven quarter sections only, the verdict must be reduced accordingly. It is therefore ordered that the order appealed from be reversed, and a new trial granted, unless plaintiff shall, within ten days from the date the cause is remanded to the court below, consent to accept judgment for $1,760 and interest.  