
    James Albert Tracy, Appellant, v. William A. Radeke.
    Real property: brokerage contract: construction. A commission contract for the sale of land which provides that the broker will use his best efforts to find a buyer, and that the owner will aid in every way possible, does not create an exclusive agency and deprive the owner of the right to sell; and upon a sale by the owner to a purchaser procured by himself the agent is not entitled to a commission.
    
      Appeal from Woodbury District Court. — Hon. Wm. Hutchinson, Judge.
    Wednesday, February 10, 1909.
    Demurrer to a petition alleging a commission due on sale of land was sustained, and, as plaintiff elected to stand on the ruling, the petition was dismissed. Plaintiff appeals. —
    Affirmed.
    
      James Albert Tracy, for appellant.
    
      Randall, Courtney & Harding, for appellee.
   Ladd, J. —

According to the petition, at the times in question the plaintiff was engaged in the real estate business at Sioux City under the name and style of Tracy Realty Company, and maintained co-operative offices in different places in Iowa, Minnesota, and the Dakotas, each actively co-operating with every other; defendant was owner of a quarter section of land in Lincoln County, Minn.; on September 28, 1906, a contract was entered into by the interchange of a proposition and acceptance in words following:

Tracy Realty Co., Sioux City, Iowa — Gentlemen: For 12 months, and till ten days after written notice, use your best efforts to get me a buyer for the N. W. of section 12, township 109, range 45, Lincoln County, Minnesota, and I will aid in every way possible, and show farm free. [Here follows description.] For an acceptable purchaser, on agreeable terms, will give you $1 an acre; or if you find such purchaser will pay you that, with the excess he agrees to pay, if any. [Signed] Wm. A. Radeke.
Received of Wm. A. Radeke, listing agreement of his property, consisting of the N. W. Yé> sec. 12 — 109—45, Lincoln County, Minn., together with his $15, with the understanding that the undersigned will add $15 of their money to it — making $30 — and spend it all in advertising said property for sale, and if quick sale is not thereby made, agree without further fee, to keep everlastingly at it to get a buyer till one is secured, or the owner says quit, and when the sale is made will credit the $15 on the commission. Tracy Realty Co., by J. W. Alexander, Local Representative.

The petition farther alleged that plaintiff had performed his part of the agreeement, and that on October 7, 1907, defendant had found a purchaser for the land to whom he had sold the same, and prayed judgment for $1 per acre less the $15 advanced. The ground of defendant’s demurrer in substance was that the contract did not operate to deprive the owner of the right to sell his property nor permit plaintiff to levy tribute on him in event he should be able to find a purchaser. It will be noted that plaintiff is not given the exclusive agency, nor is there any express promise to pay a commission on a sale made by himself. The only ground for such an implication is found in the repetition in substance of the promise of compensation. These promises, however, are to be construed in connection with the context, and, when this is dope, it will be found that the services mentioned for which compensation is to be made are plaintiff’s best efforts “to get a buyer,” and that defendant was merely “to aid in every way possible.” Fairly construed, this means that he was to aid plaintiff in such efforts, and has no reference to any independent effort on his part to sell the farm. The agreement differs so radically from that construed in Metcalf v. Kent, 104 Iowa, 487, that the case is not in point. As the proposition, and acceptance did not deprive the owner of the right to find a purchaser for his property, the sale thereof was neither a performance nor violation of the terms of the contract. Ingold v. Symonds, 125 Iowa, 82. See Tracy v. Abney, 122 Iowa, 306. — Affirmed.  