Whiteteli), C. T.,
delivered the opinion of the court.
■ The jury must have believed the following to be the facts: That Wallace had a contract, made on December 3, 1898, at Beauvoir, with Mr. Watson, acting for the Delta & Pine Lumber Company, by which he was to be paid 50 cents an acre for *673selling the lands embraced in the declaration (some 16,000 acres) ; that Mr. Watson had agreed in August, 1898, to give him said commission for selling some 31,000 acres; that at the interview at Beauvoir he had agreed to give him this commission of 50 cents an acre for selling a quantity of land equal to the 31,000 acres, less the land West of Cold Water river, which would be a body of 16,000 acres, the quantity named in the declaration ; that at the conference in Memphis, in December, 1898, Watson agreed with Wallace that he should show Carrier this 16,000-acre tract; that Watson had failed to malee this sale to parties with whom he had been negotiating at the time of the interview December 3, 1898; that he had so told Wallace at the interview in Memphis, about the middle of December, 1898, and had then told Wallace to go ahead and sell it to his man Carrier (meaning by “it” the 16,000-acre tract), and upon the previous understanding, of course, that he would pay him 50 cents an acre for so doing, but that, after this interview at Memphis, Wallace showed the Watson land, in January, 1899, to Carrier, putting himself to great pains and expense in doing so, and that as the result of Wallace’s efforts, Carrier finally bought the 11,000-acre tract, as it is called (to be exact, the tract contained 11,646.91 acres, conveyed March 15, 1899) ; that Wallace was the procuring cause of the sale of this tract by Watson to Carrier. And they must have rejected Mr. Watson’s account of the alleged verbal contract made on December 3, 1898, at Beauvoir. The jury manifestly did not attach to the letter of December 18, 1898, written by Wallace to Watson, the damning effect which counsel for appellant ascribed to it. Wallace’s explanation of this letter is that, knowing that he only had a contract to sell 16,000 acres, on a commission of 50 cents per acre, he supposed the law to be that, unless he sold the whole 16,000 acres, he could not recover any commissions, and hence that it was necessary to have an agreement for pro rata commissions on any less quantity he might sell, and that he so wrote this lettter for the purpose of se*674curing an engagement from Watson to pay him the same commissions. at the same rate (50 cents per acre) for the sale of the 11,000-acre tract referred to. The jury accepted this statement as true. Undoubtedly Wallace did put himself to great pains about the sale of this land. It is incredible that he would have undertaken to show to Mr. Carrier, in the dead of winter, these lands under the very trying hardships disclosed in the testimony, himself providing teams, wagons, etc., without expecting some sort of remuneration. It is clear that Carrier and Watson were entire strangers, and that Carrier came to Memphis to look at these lands, together with the Panola lands, through Wallace’s efforts, largely; and Carrier practically admits th'at on his subsequent visit, when he came and brought his attorney and his own inspector, he went to the coast to see Watson, while they went to New Orleans, and that, in effect, he left Pennsylvania to see Watson about these very lands, which Wallace, acting for Watson, had twice shown him in January, 1899. We have given the whole of this testimony the most careful consideration, reading and rereading it again and again, and cannot say that the verdict of the jury is plainly and manifestly wrong. So far, therefore, as Wallace’s commissions on the sale of the 11,646.91 acres of land conveyed by the deed of March 15, 1899, are concerned, we decline to disturb the verdict. But in view of the testimony of Carrier with respect to the purchase of the 3,578 acres conveyed by the deed dated November 14, 1899, we do not think the verdict was warranted a.s to that tract of land. Carrier says he made the deal for this tract in August or September, 1899. The date of the deed shows that it was not consummated until November, 1899. Carrier further says that he had no idea of purchasing this tract at the time he bought the 11,000-acre tract; that it was a wholly separate transaction. While Mr. Currier’s testimony about certain commissions (that he was, in certain contingencies, to share with Wallace and Williams^ as a result of buying lands of Watson at one price, and then selling them to his rich friend in Pennsylvania, Mr. Cebois, at a *675higher price) is not altogether reassuring, yet we are inclined to think that the lapse of time between the execution of these deeds (from March 15,1899, to November 14, 1899) is so great, and further, that the amount of land which Wallace, by his letter of December 18, 1898, was seeking to have Watson pay him commission on, was so exactly the qauntity of this 11,000-acre tract, the jury should have limited the commissions Wallace was entitled to to the amount due on the sale of the quantity of land embraced in the said deed of March 15, 1899. As quite decisive of the incorrectness of .the jury’s view on this point, we refer to Wallace’s letter of April 28, 1899, in which he only claimed about $6,000 commissions- — -the amount, at 50 cents per acre, due on the 11,646.91-acre tract. This letter was written April 28, 1899, and the sale of the 3,500 acres was only consummated in November, 1899. These considerations are decisive that the jury’s conclusion is manifestly wrong as to the commissions on the 3,500-acre tract.
We do not think the contention of learned counsel for appellant is sound — that Wallace was not entitled to a pro rata commission on the quantum meruit basis — under the peculiar facts of this ease. We think Wallace was entitled, on a quantum meruit basis, on the facts of this case, to the commissions on whatever land, as shown, he procured to be sold for Watson to Carrier. The case is covered perfectly hy that of Woods v. Stephens, 46 Mo., 556, and the ease of Martin v. Silliman, 53 N.Y., 615" court="NY" date_filed="1873-06-03" href="https://app.midpage.ai/document/martin-v--silliman-3610829?utm_source=webapp" opinion_id="3610829">53 N. Y., 615. The principle as laid down in the former is that Wallace fulfilled his contract, so far as permitted by Watson. The court say on the very contention made here: “The defense assumes one of two things: Either that, by his contract with his agents, the owner was bound to sell according to the terms furnished them, and had no power to vary them, or that, by a slight variance, after they had furnished the purchaser, he could defraud them of their compensation. Neither position has a show of reason.” In the New York case the court held: “Where a broker who. is employed to sell property at a given price, and for an agreed com*676mission, bas opened a negotiation with, a purchaser, and the principal, without terminating the agency or the negotiation so commenced, takes it into his own hands and concludes a sale for a less sum than the price fixed, the broker is entitled at least to a ratable proportion of the agreed commission.” It is not for Watson to stand part of the time for a sale in block — first 31,000 acres, then 16,000 acres — and then, at last, without discharging Wallace, and without giving him any notice, to take the matter into his own hands and do precisely what Wallace was trying to do for him, to wit, to sell this 11,000 acres at $5.50 per acre. The price Wallace shows he put on the 16,000 acres was $6, out of which his commission of 50 cents per acre was to come, which would be $5.50 net to Watson; and that is the precise price at which Watson did sell, and that is the precise quantity of land which Wallace, according to the finding of the jury, procured Carrier to buy. It is not for Mr. Watson to say, under those circumstances, that Wallace did not sell the whole 16,000 acres, since he himself prevented him from doing so, and so prevented him by selling himself a less quantity; and that quantity, the very quantity Wallace procured, according to the jury, the sale of for Watson. This very principle is recognized in Illingsworth v. Slosson, 19 Ill. App., 614 (one of the authorities relied on by appellant), where the court say: “It does not appear that the broker . . . was prevented from accomplishing what he expected by any act of defendant.” This view of the law is supported by many authorities cited by learned counsel for appellee.
If the appellee will remit so as to claim commissions only on the 11,646.91 acres conveyed by the deed of March 15, 1899, the judgment will be affirmed; otherwise the judgment will be reversed and the cause remanded.