This is an action by the plaintiffs to recover of the defendant commissions alleged to • have been earned by them
In order for a proper understanding of the questions presented by this appeal, a brief statement of the facts will be necessary. In February, 1904, the defendant was the owner of a tract of land of about 3,000 acres in Jerauld county, in this state, which he was willing to sell or exchange for other lands; that about that time the plaintiffs, who- were real estate brokers at Wessington Springs, in said county, learned from one Durkee, a real estate broker at Alexandria, Hanson county, that parties in Illinois had a farm of about 1,040 acres which they were willing to exchange for Dakota lands, and thereupon the plaintiffs called the attention of the defendant to the fact that the parties in Illinois had a farm which they might exchange for his lands, and that certain conversations were then had in regard to the commissions to be paid to the plaintiffs. Plaintiffs allege in their complaint, in substance, that they were real estate agents doing business at Wessington Springs, in this state, and that in February, 1904, the defendant entered into a contract with them, by the terms of which he stipulated that he would sell his land in Jerauld county, consisting of about 3,000 acres, “and the said defendant promised to pay the plaintiffs for finding a purchaser for said land at $16 per acre, the sum of two ' (2) dollars per acre, or the excess of the purchase price over $14 per acre in case they found a purchaser thereof at less than $16 per acre, as the plaintiffs’ compensation for finding such purchaser” ; that they found such purchaser, and that the defendant thereafter, in March of said year, conveyed his land to such purchaser at $16 per acre; that the defendant thereby became indebted to the plaintiffs in the sum of $5,724, for which they demanded judgment. At the close of plaintiffs’ evidence defendant moved to strike out the same for the reason that there was a variance between the allegations of the complaint and the evidence in that the plaintiffs’ evidence proved an exchange of the defendant’s property for the farm in Illinois, and not a sale of the same as alleged 'in the complaint. This motion, was denied. Defendant then
The appellant contends that the judgment of the court below should be reversed for the reasons (1) that the court erred in not granting the defendant’s motion to strike out plaintiff’s evidence because of variance between the evidence and the complaint; (2) that the court erred in not directing a verdict in favor of the defendant on the ground that plaintiffs had failed to prove the value of the Illinois land taken in exchange or payment for the defendant’s Dakota land and in excluding defendant’s evidence offered as to the value of the Illinois farm; (3) that the court erred in instructing the jury, in effect, that the transaction between the defendant and the owners of the Illinois farm constituted a sale of defendant’s lands, and not an exchange of the same. In the view we take of the case the court erred in holding that the contract was one of sale, and not one of exchange, and therefore errfed in denying defendant’s motion to strike out plaintiff’s evidence on the ground of variance between the allegations of the complaint and the proof, which was in substance, as before- stated, that the defendant exchanged his Dakota lands for the Illinois farm, and the court also committed error in excluding the evidence offered by defendant tending to. prove that the Illinois farm was not of the value of $45 per acre.
It is contended by the plaintiffs that, the price of the lands having been fixed in a contract between the defendant and the owners of the Illinois farm, the prices so fixed are conclusive upon the defendant, but we cannot' agree with counsel in this contention.,
’An analogous contract was construed in the case of Rockefeller v. Merritt, 76 Fed. 909, 22 C. C. A. 608, 35 L. R. A. 633, and the court held in that case that, notwithstanding the price of certain mining stocks were fixed by the terms of the contract, such prices were not conclusive upon the defendant, for the reason that the prices were fixed merely as a basis for the exchange of mining stocks of certain companies owned by the plaintiffs for consolidated mining stocks in a new company, and in the course of the opinion of that court, in speaking by Mr. Justice Sanborn, uses the following language: “One of the most satisfactory tests to ascertain the true meaning of a contract is made by putting ourselves in the place of the contracting parties when it was made, and then con
The plaintiffs by the terms of their contract with the defendant as alleged in their complaint were to receive $2 per acre if defendant received for his lands $16 per acre, or the amount per acre in excess of $14 in case defendant did not receive $16 per acre. It was competent for the defendant to show the value of the Illinois farm in order that the jury might determine from the evidence whether or not the defendant had in fact received more than $14 per acre for his Dakota lands. If as a matter of fact the Illinois farm was not worth the $45 per acre, then the defendant did not receive $16 per acre in value for his Dakota lands, and the plaintiffs would not be entitled in any event to recover under the terms of their alleged contract an amount in excess of the actual difference in the value of the Illinois farm and the $14 per acre for defendant’s Dakota lands. In excluding this evidence, therefore, the court was in error.
Much reliance is placed by counsel for respondent upon the decision in the case of Wiedenfeld v. Gallagher, 24 S- W'. 333, in which the learned • Supreme Court of Texas held that a transaction in which a part of the consideration consisted of other properties constituted a sale, and not an exchange, but that case is clearly distinguishable from the case at bar, as in that case the 'sale was made for a money consideration and other properties were received in part payment, while in the case at bar the only consideration received by the defendant for his Dakota lands was the Illinois farm.
As the other questions presented may not arise on another trial, we do not deem it necessary to express any opinion as to them on this appeal.
The judgment of the court below and order denying a new trial are reversed.