
    Ernest H. Tracy et al., appellants, v. W. J. Dean, appellee.
    Filed October 18, 1906.
    No. 14,434.
    1. Heal Estate Agents: Contracts. To entitle a real estate broker to recover a commission for the sale of real estate he must prove a sale of the land on such terms as would entitle him to a commission under the provisions of a written contract between himself and the owner.
    2. Evidence. Correspondence set out in the opinion held insufficient to entitle the plaintiff to recover a commission.
    Appeal from the district court for Madison county: John F. Boyd, Judge.
    
      Affirmed.
    
    
      Mapes & Eazen, for appellants.
    
      M. D. Tyler, contra.
    
   Epperson, C..

Plaintiffs are real estate brokers, and brought this suit to recover a commission alleged to be due by reason of a sale of defendant’s property, situate in the city of Norfolk. The case brought shows the following facts: On September 28, 1901, plaintiffs wrote defendant (Exhibit A) as follows: “Do you Avisli to sell your residence property in this city? If so, kindly name your lowest price for cash, also your price on time, and terms, both subject to a commission of 5 per cent, on the first thousand and 2⅛ per cent, on balance. If you will make the price right, Ave think AAre may be able to make a sale. An early reply will greatly oblige.” On October 3, 1901, defendant replied (Exhibit B) as folloAvs: “In reply to yours of Sept. 28, Avill say that my price on my Norfolk property is $2,000. 'Will sell on time if satisfactory payment can be made, or will give you an -option for 0 months at $1,800 cash, meaning by this that I am to receive $1,800 cash, you all above that you can get. Let me hear from you. It has been in hands of Lamont.” On May 21, 1902, plaintiffs again wrote the defendant a letter (Exhibit C) regarding this property as follows: “We have been endeavoring all winter to effect a sale on your property at $2,000, but, so far, have been unable to do so, as it is priced a little bit strong considering other properties which have been sold in town of about the same character. We have an offer now of $1,250 cash and two vacant lots, 45 by 122 each, block one, Bear and Mathewson’s addition to Norfolk, on 10th street facing east. These lots are in the block where Dan Koenigstein now lives, and two new houses costing about $1,500 each have been built between his house and this property, which is the southeast corner of the block.. The lots are probably worth $600 to $650. Kindly advise us whether you will consider proposition of this kind, allowing us a commission for the same, and greatly oblige.” To this letter the defendant wrote and mailed, May 31, 1902, the fol-loAving reply (Exhibit D) : “It is impossible for me to form a correct judgment concerning the offer you have on my property Avithout knoAving more about the lots. X will be in Norfolk in a feAv days, and then if the offer is still open it will not take me long to decide. If I find tbe lots are worth $800, I will probably make the trade.” Within a few days after the mailing of the letter last above set out, plaintiff visited Norfolk, and rented the property in question to one Hoffman. Later defendant conveyed his property to' Hoffman, and received therefor $1,300 in cash and the lots described in plaintiff’s letter (Exhibit C). The deal was finally consummated through correspondence between defendant and Hoffman. While in Norfolk the defendant did not negotiate with plaintiffs, nor call upon them to render assistance in bringing about a sale. There is some conflict in the evidence as to whether the increase of $50 in the* cash payment Avas brought about through the efforts of the plaintiffs, but, as we view the case, it is immaterial.

Before the plaintiffs may recover they must show a written contract, subscribed by the parties, wherein is set forth the compensation to be alloAved by the owner in case of a sale by the broker or agent. Ann. St. sec. 10258. The plaintiffs rely upon the correspondence above set out to show such a contract. At most, such correspondence amounted to an agreement to pay a commission in the event that the plaintiffs Avould sell the property for more than $1,800 Avithin six months from and after the date of defendant’s first letter (Exhibit B). EAren had the time therein limited been extended by parol agreement, plaintiffs have failed to shoAV that they are' entitled to a commission. The evidence does not disclose that the lots taken by the defendant as a part of the consideration for the sale of his property exceeded $500 in value, and therefore, giving the correspondence the most liberal construction favorable to plaintiffs, they did not earn the commission under its terms.

The judgment of the district court Avas for the defendant, and we recommend that it be affirmed.

Amiss and Oldham, CC.; concur,

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.  