This wаs an action for the recovery of fifteen thousand dollars, as commissions which plaintiff asserted were due him for services as a broker in selling for defendant a note and mortgage fоr one hundred and fifty thousand dollars, and all of the stock of the Pokegama Sugar Pine Lumber Company, a corporation, owning a large tract of timber land in the state of Oregon. Judgment was given for defendant, and from it plaintiff appeals.
The complaint contained three counts, the first pleading an employment of plaintiff by defendant to make a sale of the stoсk, note, and mortgage, and a performance of services under such employment “reasonably worth the sum of $15,000”; the second is an ordinary count on a quantum, meruit; and the third is a common count in indebitatus assumpsit.
It appears that in 1904 the defеndant Mason owned the stock of the Pokegama Sugar Pine Lumber Company, and a mortgage for one hundred and fifty thousand dollars upon the Klamath Lake Railroad. This railroad was owned principally by one Hervey Lindley, who was very anxious to make a sale of the road in conjunction with defendant’s land. Lindley sent Brown to Mason in November, 1904. An agreement *157 was obtained whereby dеfendant promised to sell his stock and mortgage for three hundred and ninety thousand dollars, of which ninety thousand dollars was to he paid at once and the balance in three yearly pаyments of one hundred thousand dollars each. This option was to remain in force until January 1, 1905. Mason also signed a promise to pay Brown fifteen thousand dollars if the latter should succeеd in closing the sale in accordance with the terms of the option. At the request of Brown the option was afterwards extended to the tenth day of January, 1905. On the last-mentioned date the appellant took one George L. Long, a representative of the Weyerhaeuser Timber Company, to Los Angeles, and introduced him to respondent. Mason refused to give an еxtension of tbe option, but gave Long a new option on the same property for four hundred thousand dollars, good until February 11, 1905. He also agreed to pay Brown fifteen thousand dollars if this sale should be made. At the expiration of this second option an unsuccessful attempt was made by Long to secure an extension. Negotiations between Long and Mason had apparently terminated. On March 9, 1905, the respondent wrote to appellant, telling him that the transaction was at an end. On April 11, 1905, appellant Brown, wrote to Mason and spoke of the mattеr of his compensation. He received a reply, dated April 12th, in which the writer used the following language: “We have now taken the matter up directly with the Cooks and made a compromise deal at a greatly reduced price, which is to be net to us. I utterly fail to see how you are connected with this deal at all, certainly you were not for us.” The Cooks mentioned were two brothers who had a judgment against the Pokegama company and Hervey Bindley. They secured a contract of sale from Mason for this property at three hundred and twenty-five thоusand dollars, but the negotiations failed and Mason rescinded this agreement in May, 1905. The court below found that this contract was secured at the instigation of Long, but that Mason was ignorant of that fact. During the summer of 1905 Long made an unsuccessful endeavor to secure the property and then dropped negotiations until November, when he went to Los Angeles, secured an optiоn on the property and purchased it finally in December, 1905, for the sum of three hundred thousand dollars.
*158
That plaintiffs legitimate interest in the matter of the sale of this property was limited to his contract of employment there can be no doubt. When an agent procures such an agreement in which time is of the essence of the transaction, he is bound by its terms. There is no implied рromise arising of necessity from the relation existing between a prospective vendor and his agent that the former will pay a commission if, at a time subsequent to the life of the written contract, the property is sold to the person introduced by the agent. The two essentials to the broker’s success under a written appointment such as Brown obtained from Mason are, 1. Thаt he should produce and introduce to the seller a customer ready, able, and willing to take the property upon the terms stipulated ; and, 2. That this should be done within the time limit of the optiоn. If the purchaser is willing to take the property on different terms and the variance is waived by the vendor, the broker may still obtain his commission; or if, having produced a suitable purchaser but nоt within the time limit, owing to a delay caused by his principal, the broker is entitled to his commission. Wanting any of these exceptions, however, a broker is strictly held to the terms of his contract. (See Mechem on Agency, secs. 965, 966.) The rule is well expressed in
Zeimer
v.
Antisell,
"And before a broker can be said to have earned his commission, it must also be shown that he produced a purchaser, who was ready and willing to make the purchase on terms satisfactory to his employer
and that he was the efficient agent or procuring cause of the sale. (McGavock
v.
Woodlief,
“The duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until this is done his right to commissions does not accrue.
(Sibbald
v.
Bethlehem Iron Co.,
“It must further appear that the broker performed the duty assumed by him
within the time limited in his contract,
or within such extension of time as may have been granted by his employer. If he fail to do that he is not entitled to the commission, even though he made efforts to sell the property,
and first called to it the attention of the party who subsequently made the purchase,
unless the delay was caused by
*159
the negligence, fault or fraud of the owner.
(Fultz
v.
Wimer,
The case of
Zeimer
v.
Antisell,
“The rule laid down in Zeimer v. Antisell,75 Cal. 509 , [17 Pac. 642 ], has never been questioned or overruled by this court, so far as wе know, and must control this question.”
This case which we are now considering is quite similar to that of
Fultz
v.
Wimer,
“It is doubtless true that Fultz was instrumental in enabling the defendant to sell his land; but as Fultz and Wimer had entered into written stipulations as to the terms upon which Fultz was entitled to commission, these stipulations must control. Fultz failed to find or produce a purchaser ready and willing to take the farm and pay the money within the time prescribed in the written contract or within the time that Wimer extended such contract, and Wimer was under no obligation to wait аny longer that he might make further efforts. (22 Cent. Law J., 466 ; Wylie v. Marine etc. Bank,61 N. Y. 415 .) After the extension of the contract had expired, Wimer had the right to sell to Galli or to any one else; and under the written contract, he was not liablе to pay to Fultz his commission, or any other sum, because, after the expiration of the extension of the contract, the contract had spent its force. (Coleman v. Meade, 13 Bush. 358; Charlton v. Wood,11 Heisk. 19 .) If the delay in closing the sale between Galli and Wimer had been caused by any negligence, fault or fraud of Wimer, Fultz would be entitled to his commission; but the evidence shows nothing of this kind. Wimer acted in the best of faith, and was very dеsirous, being over-anxious, for Fultz to produce a cash purchaser upon the terms prescribed in the written contract.”
*160
Appellant’s counsel are apparently of opinion that the case just cited is not in consonance with the better authorities in this country, and that it is in conflict with the doctrines expressed in
Wilson
v.
Sturgis,
It is to be remembered, also, that in
Ropes
v.
Rosenfeld’s Sons,
It follows that the judgment must be affirmed and it is so ordered.
Henshaw, J., and Lorigan, J., concurred.
Hearing in Bank denied.